Citation Nr: 1314987 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-11 195A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased initial rating in excess of 10 percent for left shoulder disability. 2. Entitlement to an increased initial rating in excess of 20 percent for degenerative disc disease with spurring and bulging disc of the cervical and thoraco-lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 2002. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for both disabilities. In the September 2010 Supplemental Statement of the Case, the issue of entitlement to an increased rating in excess of 20 percent for degenerative disc disease with spurring and bulging disc of the cervical and thoraco-lumbar spine was recharacterized as entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. A separate evaluation for the Veteran's service connected cervical spine was not mentioned. As that recharacterization effectively limits the disability from its initial grant, it is inaccurate. Therefore the issue on the title page remains entitlement an increased rating in excess of 20 percent for degenerative disc disease with spurring and bulging disc of the cervical and thoraco-lumbar spine. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Evidence in the claims file, including the statement by the October 2009 VA examiner that the Veteran was unemployable due to her low back disability could be construed as a claim for entitlement to TDIU. This matter is referred to the RO for action deemed appropriate. FINDINGS OF FACT 1. Prior to the August 2010 VA examination, the Veteran's left shoulder disability was characterized by pain, tenderness, and decreased range of motion. Specifically, her left shoulder abduction and forward flexion have been limited to a point above shoulder level. 2. During the August 11, 2010, VA examination, the Veteran's left shoulder forward flexion was limited to shoulder level. 3. Throughout the appellate period, the Veteran's thoracolumbar spine disability has been characterized by pain, spasms, and decreased range of motion to generally no less than 45 degrees flexion. 4. Throughout the appellate period, the Veteran's cervical spine disability has been characterized by pain and decreased combined range of motion to no less than 180 degrees. CONCLUSIONS OF LAW 1. Prior to August 11, 2010, the schedular criteria for a disability rating in excess of 10 percent for left shoulder disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5201 (2012). 2. As of August 11, 2010, the schedular criteria for a disability rating of 20 percent, but no more, for left shoulder disability are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5201 (2012). 3. The schedular criteria for a disability rating in excess of 20 percent for degenerative disc disease with spurring and bulging disc of the thoracolumbar spine are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2012). 4. The schedular criteria for a separate 10 percent rating for degenerative disc disease with spurring and bulging disc of the cervical spine are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claims arise from an appeal of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). Left Shoulder The Veteran was initially granted service connection left shoulder disability in an October 2004 rating decision. This decision assigned a 10 percent evaluation, effective January 22, 2004. The Veteran appealed this initial evaluation. The record reflects that the Veteran is right handed. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet App 119, 125-26 (1999). As explained below, the Board finds a staged rating to be appropriate in this case. Under Diagnostic Code 5201, limitation of motion of the arm at the shoulder level is rated 20 percent for either shoulder. 38 C.F.R. § 4.71a. Limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. 38 C.F.R. § 4.71a, DC 5201. Limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. Id. Based on Plate I, the Board finds that shoulder level is approximately 90 degrees of forward flexion or 90 degrees of abduction. See 38 C.F.R. § 4.71a, Plate I. Ankylosis of the scapulohumeral articulation is rated under Diagnostic Code 5200. 38 C.F.R. § 4.71a. Favorable ankylosis with abduction to 60 degrees, can reach mouth and head, is rated at 30 percent for the major shoulder and 20 percent for the minor shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Intermediate ankylosis (between favorable and unfavorable) is rated at 40 percent for the major shoulder and 30 percent for the minor shoulder. Id. Unfavorable ankylosis with abduction limited to 25 degrees from side is rated at 50 percent for the major shoulder and 40 percent for the minor shoulder. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Alternately, disabilities of the shoulder can be evaluated under Diagnostic Code 5203, for malunion or nonunion of the clavicle or scapula, or under Diagnostic Code 5202, for other impairments of the humerus including malunion, non-union, fibrous union, recurrent dislocations, or loss of humerus head. 38 C.F.R. § 4.71a. Throughout the appeals period, the Veteran's left shoulder disability has been characterized by pain, tenderness, and decreased range of motion. Prior to August 11, 2010 Prior to the August 2010 VA examination, the Veteran's left shoulder abduction has been limited to a point above shoulder level. Radiologic evidence does not show malunion or nonunion of any bone of the left shoulder. VA treatment records from November 2005 show limitation of left shoulder abduction to 110 degrees. Physical therapy records from December 2005 to February 2006 show that the Veteran's bilateral shoulder abduction was limited to no less than 125 degrees. At the time of her March 2008 VA general medical examination, the Veteran described some tenderness to palpation over the supraspinatus. Her range of motion was flexion from zero to 125 degrees with limitation due to pain at the end of the range, abduction from zero to 125 degrees with limitation due to pain at the end of the range, internal rotation from zero to 70 degrees, external rotation from zero to 70 degrees. The Veteran underwent a VA examination in April 2009 in conjunction with this appeal. At that time she complained of left shoulder, arm, and neck pain with intermittent tingling in the fingers of the left hand. She reported pain, stiffness, and impairment of joint motion, but not deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, locking episodes, effusion, inflammation, or flare-ups. There were no constitutional symptoms of arthritis or incapacitating episodes of arthritis. Upon physical examination, the Veteran's left shoulder showed symptoms of tenderness and pain at rest. Her left shoulder range of motion was flexion from zero to 109 degrees, abduction from zero to 111 degrees, internal rotation from zero to 58 degrees, external rotation from zero to 54 degrees. There was objective pain with active motion and following repetitive motion, but no additional functional limitation was noted. There was no joint ankylosis. The Veteran was diagnosed with moderate degenerative arthrosis of the left shoulder. The Veteran's activities of daily living were affected by this disability in that exercise and sports were moderately affected. Chores, shopping, recreation, dressing, grooming, and driving were mildly affected. There was no affect on traveling, feeding, bathing, or toileting. Based on the above, the Veteran's left shoulder disability most nearly approximates the criteria for the current 10 percent evaluation prior to August 11, 2010. While pain, tenderness, and limitation of motion are noted, this limitation is not shown to be the functional equivalent of limitation of motion of the arm at the shoulder level. Indeed, at no time during this period were the Veteran's left shoulder abduction or forward flexion measured at 90 degrees (i.e., shoulder level) or less despite pain and repetitive testing. Thus, the criteria for a 20 percent evaluation are not met. See 38 C.F.R. § 4.71s, DC 5201. Thus, the criteria for an evaluation higher than 10 percent are not met. See id. A higher evaluation is not available under Diagnostic Code 5200 as the record does not show ankylosis. See 38 C.F.R. § 4.71a. Likewise, the record does not show nonunion of malunion of the bones of the shoulder or other impairment of the humerus. Therefore higher evaluations are not available under DC 5202 (impairments of the humerus) or DC 5203 (malunion or nonunion of the clavicle or scapula). See id. Thus, the Board determines that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran's left shoulder disability prior to August 11, 2010. 38 C.F.R. § 4.7. August 11, 2010, to Present On August 11, 2010, the Veteran again underwent a VA examination in conjunction with her appeal. At that time, she reported essentially unchanged symptoms since the prior examination. Her left shoulder range of motion was flexion from zero to 91 degrees, abduction from zero to 115 degrees, internal rotation from zero to 45 degrees, external rotation from zero to 53 degrees. There was objective pain with active motion and following repetitive motion, but no additional functional limitation was noted. There was no joint ankylosis. The Veteran's activities of daily living were affected by this disability in that exercise, chores, shopping, and sports were moderately affected. Recreation, traveling, dressing, bathing, and driving were mildly affected. There was no affect on feeding, grooming, or toileting. As of that VA examination, the Board finds sufficient evidence to warrant a 20 percent rating. Specifically, that examination showed left shoulder forward flexion limited to roughly shoulder level in that this examiner measured her left shoulder forward flexion as 91 degrees. Unlike the General Rating Formula for Diseases and Injuries of the Spine, the criteria for evaluating limitation of shoulder motion is not listed in terms of specific degrees and does not require that all range of motion measurements be rounded to the nearest 5 degrees. Nevertheless, the Board finds that 91 degrees of forward flexion is roughly equal to limitation of motion of the arm at shoulder level, which entitles the Veteran to a 20 percent evaluation from this point onward. 38 C.F.R. § 4.71a, DC 5201. The record, however, does not show further limitation of motion of the arm in any measured plane. As such, a higher evaluation is not available under this diagnostic code. See id. Likewise, the record does not show ankylosis of the shoulder, nonunion of malunion of the bones of the shoulder, or other impairment of the humerus. Therefore, a higher evaluation is not available under another diagnostic code. See 38 C.F.R. § 4.71a, DCs 5200, 5202, 5203. Thus, the preponderance of the evidence is in favor of a 20 percent rating, but no more, for the Veteran's left shoulder disability as of August 11, 2010. 38 C.F.R. § 4.7. Spine The Veteran was initially granted service connection for degenerative disc disease with spurring and bulging disc of the cervical and thoraco-lumbar spine in an October 2004 rating decision. This decision assigned a 20 percent evaluation, effective January 22, 2004, based on degenerative disc disease of two or more major joints. The Veteran appealed this initial evaluation. As an initial matter, the Board notes that the October 2004 rating decision stated that the 20 percent rating assigned was the maximum available under the Rating Schedule. This is not wholly accurate. While this is the maximum directly available under Diagnostic Code 5003, that diagnostic code also allows for ratings based on the limitation of motion of the affected joints, which may allow for a higher combined rating. See 38 C.F.R. § 4.71a. Moreover, the General Rating Formula for Diseases and Injuries of the Spine requires that disability of the thoracolumbar and cervical spine segments be rated separately, except when there is unfavorable ankylosis of both segments. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (6). The Board acknowledges that two separate 10 percent evaluations would result in a slightly lower combined rating than the currently assigned 20 percent. See 38 C.F.R. § 4.25. As explained below, the evidence of record in this case shows that there is compensable limitation of motion of both the thoracolumbar and cervical spine. Therefore these disabilities are more appropriately separated and rated individually instead of combined under the criteria for degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Moreover, the manifestations of the Veteran's thoracolumbar spine degenerative disc disease warrant a 20 percent disability rating and the manifestations of her cervical spine degenerative disc disease warrant a separate 10 percent disability rating. As such, the combination of these two disability ratings is higher than the 20 percent that could be assigned under DC 5003. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated either based on the limitation of motion of the affected joint based on x-ray findings. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. When there is no limitation of motion of the specific joint involved a 10 percent evaluation is for arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is available for arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is some objectively confirmed limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, a rating of 10 percent is warranted for each such major joint or group of minor joints affected by limitation of motion. Id. When there is compensable (10 percent or higher) limitation of motion of the specific joint affected, that joint should be evaluated under the appropriate diagnostic codes for limitation of motion of that specific joint. Id. Disabilities of the spine, such as degenerative disc disease, are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. Id. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 20 percent disability rating is warranted for 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. Id. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. 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. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. Id. The normal combined range of motion (sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. In this case, the Board notes that the Veteran has non-service-connected fibromyalgia, which may also affect the motion of her spine. When it is not possible to distinguish disability caused by service-connected conditions from that caused by a non-service-connected disorder, the entire disability is treated as if caused by service connected conditions. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Thus, where the medical evidence does not separate the Veteran's symptoms of fibromyalgia from her spine disability symptoms, those symptoms will be considered as part of the service connected disability picture for rating purposes. X-ray evidence shows degenerative changes of the cervical and thoraco-lumbar spine. See e.g., September 2004 VA examination. Likewise, the record shows the Veteran's continued complaints of back pain, muscle spasm, and stiffness, as well as measurable limitation of motion. In her lay statements, the Veteran reported constant pain radiating throughout her back and neck, flare-ups, muscle spasms, muscle fatigue, popping, and trembling. At the time of the September 2004 VA examination, the Veteran's range of motion of the cervical spine was forward flexion to 45 degrees, extension to 10 degrees, lateral rotation to 45 degrees and lateral bending to 45 degrees, for a combined range of motion of 235 degrees. There was no tenderness to palpation. Conversely, there was some moderate tenderness to palpation in the thoracic spine. The range of motion of his thoracolumbar spine was forward flexion to 45 degrees, extension to neutral, lateral rotation to 10 degrees and lateral bending to 10 degrees, for a combined range of motion of 85 degrees. Private treatment records from January 2005 note decreased range of motion in the cervical spine, tenderness at various vertebrae, and forward flexion limited to 90 degrees. It is not specified which spinal segment has forward flexion limited to 90 degrees, but based on the normal ranges of motion given in Plate V, the Board finds it most likely that this measurement refers to the motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a. The Veteran was diagnosed with probable fibromyalgia, herniated disc of the cervical spine with myelopathy, and degenerative disease of the cervical and thoraco-lumbar spine. Private treatment records from the Pinto Clinic also dated January 2005 provided range of motion measurement for the lumbar spine of forward flexion to 25 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, and left lateral flexion to 10 degrees all with pain, for a combined range of motion of 65 degrees. Range of motion measurement for the cervical spine were forward flexion to 40 degrees, extension to 35 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and bilateral lateral rotation to 60 degrees all with pain, for a combined range of motion of 180 degrees. November 2005 VA treatment records from show loss of lumbar lordosis, limitation of flexion and rotation of the cervical spine with a pulling sensation, and full range of motion of the lumbar spine. The Veteran's subjective complaints included episodic weakness, muscle spasms, pain, twitching legs, and a recent history of urge bowel incontinence. Physical therapy records from December 2005 to February 2006 note pain, flare-ups, and significant limitations to the range of motion of both her cervical and lumbar spine. The therapist estimated decreases in all ranges of up to 25 percent and, during one visit, a decrease in lumbar forward flexion of 50 percent. At the time of her March 2008 VA general medical examination, the Veteran reported thoracic back pain that radiated to her neck and buttocks. Her symptoms had flared up one week prior to this examination and her medication had not alleviated the pain. She rose slowly and walked down the hallway slowly. She had no tenderness to palpation of her cervical spine and her range of motion was from zero to 45 degrees of flexion, from zero to 45 degrees extension, from zero to 50 degrees lateral rotation bilaterally, and from zero to 20 degrees lateral flexion bilaterally, for a combined range of motion of 230 degrees for her cervical spine. Her thoracic spine had mild tenderness to palpation with no muscle spasm noted. She indicated that this was the primary area for her pain. Her lumbar spine range of motion was flexion from zero to 45 degrees, extension from zero to 10 degrees, lateral rotation from zero to 45 degrees bilaterally, and lateral flexion from zero to 20 degrees bilaterally, for a combined range of motion of 185 degrees for her thoracolumbar spine. This examiner found that the Veteran's service connected disabilities did not render her unemployable. A private examination in October 2008 found a normal cervical spine with no tenderness or spasm and a normal dorsolumbar spine with tenderness over the mid and low back, but no kyphosis or scoliosis. The examiner noted severe voluntary rigidity with significant limitation to the range of motion with forward flexion limited in this way to 20 degrees and extension limited to less than 10 degrees. Given that the examiner noted limitation of motion was affected by voluntary rigidity, the probative value of these measurements is significantly decreased. The Veteran's gait was normal, but she was unable to heel-toe walk or squat. Neurological testing was normal without abnormal findings in motor strength, reflex, or sensory testing. There was no muscle atrophy. In October 2009, the Veteran underwent a VA spine examination in conjunction with this appeal. At that time, she complained of constant low back pain with radiation to the hips that was worsened with prolonged positioning. She reported shooting pain down the right leg on a weekly basis. The Veteran reported a history of numbness, unsteadiness, falls, leg or foot weakness, fatigue, decreased motion, stiffness, weakness, and spasms. The Veteran also stated that she suffered from severe flare-ups every two or three months due to weather changes and these flare-ups would last an average of three days and during these flare-ups she was unable to walk more than a few yards. These incapacitating episodes were not due to intervertebral disc syndrome. Physical examination found normal posture, gait, head position, and spinal curvature with symmetry in appearance. There was objective evidence of bilateral guarding, pain with motion, and tenderness, but not spasm, atrophy, or weakness. Testing also found some decrease in motor strength in the bilateral hips, knees, and ankles. Sensory and reflex exam results were normal. Her range of motion for the thoracic spine was from zero to 45 degrees forward flexion, from zero to 15 degrees extension, from zero to 15 degrees lateral flexion bilaterally, and from zero to 15 degrees lateral rotation bilaterally. The examiner noted objective evidence of pain on active range of motion and with repetitive motion, but no additional functional loss due to this pain was found. Radiologic testing found degenerative disease of the lumbar spine without significant neural compromise. The Veteran's activities of daily living were affected by this disability in that chores, shopping, exercise, sports, recreation, traveling, bathing, dressing, toileting and grooming were moderately affected. There was no affect on feeding. The examiner noted that her pain medication of morphine, which was prescribed for pain associated with her low back disability and fibromyalgia, made it difficult for the Veteran to perform even sedentary duties due to somnolence and impaired judgment. Thus, the examiner found the Veteran's low back disability rendered her fully unemployable. She last worked in 2004. In light of the totality of the evidence, the Veteran's degenerative disc disease of the thoracolumbar spine most nearly approximates the criteria a 20 percent evaluation. The preponderance of the record shows limitation of forward flexion of the lumbar spine to 45 degrees or more. Thus, the criteria for a 20 percent evaluation are met. See 38 C.F.R. § 4.71a, DC 5242. The record also contains private records dated January 2005 and October 2008 where the Veteran's forward flexion of the lumbar spine was noted to be less than 30 degrees. As noted above, the October 2008 record notes voluntary rigidity during range of motion testing, indicating that the recorded measurements did not accurately reflect the Veteran's limitation of motion. The January 2005 record does not note any such issue with the recorded ranges. However, as this measurement is the outlier amid several recorded ranges of motion, the Board does not find that this measurement of forward flexion to 25 degrees is sufficient to warrant the next higher evaluation of 40 percent. Likewise the significant limitation of motion and pain noted is not shown to be the functional equivalent of an ankylosed spine, even after repetitive testing. While significant limitation of motion and pain are noted, this limitation is not shown to be the functional equivalent of an ankylosed spine, even after repetitive testing. Thus, the criteria for an evaluation higher than 20 percent are not met. See id. A higher evaluation is not available under Diagnostic Code 5243 as the record does not show any incapacitating episodes due to intervertebral disc syndrome. See 38 C.F.R. § 4.71a, DC 5243, Note (1)(defining an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). Thus, the Board determines that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's degenerative disc disease of the lumbar spine. 38 C.F.R. § 4.7. Additionally, the degenerative disc disease of the cervical spine most nearly approximates the criteria a separate 10 percent evaluation. The Veteran's cervical spine disability symptoms include pain and decreased combined range of motion to no less than 180 degrees. Based on these findings, a 10 percent evaluation is warranted. See 38 C.F.R. § 4.71a, DC 5242. At no point has the Veteran's limitation of motion of the cervical spine been measured as between 15 and 30 degrees of forward flexion. Thus, the criteria for an evaluation higher than 20 percent are not met. See 38 C.F.R. § 4.71s, DC 5242. The record shows muscle spasms and loss of spine curvature, but the presence of muscle spasms and/or abnormal spine contour does not warrant a higher evaluation as these symptoms are contemplated in a lower rating level. See id. Again, a higher evaluation is not available under Diagnostic Code 5243 as the record does not show any incapacitating episodes due to intervertebral disc syndrome. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Thus, the Board determines that the preponderance of the evidence is in favor of the assignment of a separate rating of 10 percent, but not more, for the Veteran's degenerative disc disease of the cervical spine. 38 C.F.R. § 4.7. The Board has also considered whether separate compensation is warranted for neurological symptoms. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. In this case, the record indicates some complaints of bowel incontinence and constipation. Ultimately, these complaints were associated with medication. See VA treatment record November 2009. As such, bowel dysfunction is not shown to be a neurological symptom of her spine disabilities. Additionally, the Veteran's back and neck pain is described as radiating. Despite this, no radiculopathy or neuropathy has been associated with the Veteran's service connected disabilities. The evidence does not show any neurologic abnormalities that have been associated with the Veteran's degenerative disc disease, separate ratings for such are not warranted. See 38 C.F.R. § 4.71a, Note (1). Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities, such as ankylosis, and malunion or nonunion of the bones, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder, specifically the reported symptoms of pain and limitation of motion. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER A disability rating in excess of 10 percent for left shoulder disability prior to August 11, 2010, is denied. A disability rating of 20 percent, but no more, for left shoulder disability as of August 11, 2010, is allowed, subject to the regulations governing the award of monetary benefits. A disability rating in excess of 20 percent for degenerative disc disease with spurring and bulging disc of the thoraco-lumbar spine is denied. A separate disability rating of 10 percent for degenerative disc disease with spurring and bulging disc of the cervical spine is allowed, subject to the regulations governing the award of monetary benefits. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs