Citation Nr: 1315026 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-23 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for numbness of the arms, shoulders, and left leg. 2. Entitlement to an increased initial rating in excess of 20 percent for degenerative joint disease (DJD) of the lumbar spine. 3. Entitlement to an increased initial rating in excess of 10 percent for cervical spondylosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from October 1992 to November 30, 2006, with 5 years, 10 months prior unverified active duty service. This case initially came before the Board of Veterans' Appeals (Board) on appeal from February 2007 and May 2008 decisions rendered by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board Remanded the appeal in January 2012. The entire record, including the Veteran's Virtual VA (electronic) records, has been reviewed. After the supplemental statement of the case (SSOC) was issued by the Appeals Management Center (AMC) in August 2012, the appeal was returned to the Board in September 2012, and the Veteran was notified of the transfer. The Veteran submitted lengthy clinical evidence to the Board, including the report of a June 2012 VA examination, which was not addressed in the August 2012 SSOC. The additional evidence submitted to the Board by the Veteran in September 2012 is pertinent to the appeal, and the Veteran has not waived his right to AOJ review of the evidence. However, the decision below is favorable to the Veteran. The Board has granted service connection for a left leg disability, and grants an increased initial evaluation of 40 percent for DJD of the lumbar spine, the maximum schedular evaluation available based on limitation of motion. The Board also grants an increase in the initial evaluation from 10 percent to 20 percent for cervical spondylosis. It would be unfavorable to the Veteran to Remand these claims for further development. As no numbness of the arms and shoulders has been found on any VA examination or by any provider, it would be fruitless to Remand the claim. The Board notes that the report of the June 2012 VA examination references a medical diagnosis related to the Veteran's service-connected lumbar disability affecting the Veteran's right leg. As the Veteran has not sought service connection for a separate neurologic disorder of the right leg, that issue is not before the Board at this time. FINDINGS OF FACT 1. The examiner who conducted June 2012 VA examination concluded that the Veteran has radiculopathy of the left leg and, resolving doubt as to the interpretation of the examination report in the Veteran's favor, related that diagnosis to the Veteran's service-connected degenerative joint disease of the lumbar spine. 2. The Veteran has not manifested numbness or other sensory deficit of the arms and shoulders on objective examination during the pendency of this claim, apart from essential tremor, claimed as muscle twitching, for which service connection is already in effect. 3. The Veteran's flexion of the lumbar spine was to 60 degrees, with additional limitations due to pain, in 2006, but flexion was limited to 30 degrees or less from July 31, 2008; however, the Veteran does not report that he has incapacitating episodes of back pain for which a provider has confined him to bedrest. 4. Prior to June 2012, the Veteran's cervical spine disability results in pain and guarding with motion, and an inability to perform repetitive motion. Since June 2012, the Veteran's cervical spine disability results in pain with all flexion, beginning at 0 degrees, with retained active flexion to 25 degrees. The combined cervical spine motion to 155 degrees, albeit with pain, establishes that ankylosis is not present, and medical evidence establishes that the Veteran does not have IVDS of the cervical spine. CONCLUSIONS OF LAW 1. The criteria for service connection for left leg radiculopathy, claimed as numbness of the left leg, are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. The criteria for service connection for numbness, arms and shoulders, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 3. The criteria for an increased initial rating from 20 percent to 40 percent for DJD, lumbar spine, but no higher evaluation, are met from July 31, 2008, but no earlier. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237-5243 (2012). 4. The criteria for an increased initial rating from 10 percent to 20 percent for cervical spondylosis are met, but no higher evaluation is warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the claim for service connection for radiculopathy of the left leg. A discussion of VA's duties to notify and assist as to that claim is not necessary, since further action to address the duty to notify or assist as to the claim for service connection would not be in the Veteran's interest. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duties to assist and notify, as to the increased rating claims and the claim of entitlement to service connection for numbness of the arms and shoulders, are addressed below, before assessing the merits of the appeal. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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, 3.326(a) (2012). Duty to Notify Under the VCAA, VA has a duty to inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This 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). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was notified of the criteria for service connection by way of an initial letter sent in May 2006. Letters describing the criteria for service connection were also issued in 2007. The letters included information complying with the requirements set forth in Dingess. Additionally, the Board's 2012 Remand and letters following that Remand provided additional information to the Veteran regarding the criteria and evidence to establish his claim. The claims for higher initial ratings for cervical and lumbar disability follow the initial grants of service connection for those disabilities. In such circumstance, the notice which precedes a claim which has been granted is deemed to have been sufficient, since the claim has been substantiated. Therefore, the duty to notify is considered met as to each of the claims for increased initial ratings. The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. In this case, the Veteran received pre-adjudicative notice and numerous post-adjudicative notices followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). If any notice deficiency is present in this case, the Board finds that any prejudice due to an error in notice has been overcome in this case by the complete development conducted following the 2010 Board Remand. The record demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the claim at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records have been obtained. Private and VA treatment records are associated with the claims files. VA examinations have been conducted. The Veteran has submitted evidence and argument on his own behalf. The Veteran requested a hearing before the Board. The requested hearing was scheduled for April 2011. The Veteran did not appear for the scheduled hearing and did not request that the hearing be rescheduled. The Veteran is deemed to have withdrawn the request for a hearing. The grant of an increased initial rating from 20 percent to 40 percent for lumbar disability is the maximum schedular rating available, since the examiner has provided an opinion that IVDS is not present, so it is not prejudicial to the Veteran to adjudicate that claim at this time. As to the claim for an increased rating for a cervical spine disability, the Veteran does not contend that the cervical spine disability has increased in severity since the 2012 VA examination, so it is not prejudicial to the Veteran to adjudicate the claim at this time, as there is no reasonable possibility that a higher rating could be granted. The Veteran has not manifested numbness of the arms and shoulder at any VA examination during the pendency of this claim, nor has any private provider found such symptom or identified a diagnosis for numbness of the arms and shoulders. There is no reasonable possibility that the Veteran can substantiate this claim. Therefore, the Veteran is not prejudiced by the adjudication of these claims at this time. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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). Applicable Law, Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. In a recent decision, the Court of Appeals for the Federal Circuit (Federal Circuit) has clarified the interpretation of the methods of establishing service connection under 38 C.F.R. § 3.303. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The criteria for service connection under § 3.303(a) are satisfied, according to the Federal Circuit, when a three-element test is met. The evidence must establish (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. If a Veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the Veteran seeks benefits establish service connection for the chronic disease. The second way to establish service connection set forth in § 3.303(b) is restricted to chronic diseases defined as such by VA regulation. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and the Veteran's service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. The Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed § 3.309(a) regardless of the point in time when a Veteran's chronic disease is either shown or noted. Id. 1. Claim for service connection for radiculopathy, left leg During the Veteran's service, he was treated for complaints of twitching of the hands, beginning in 2003. Motor examination disclosed no abnormality. EMG (electromyogram) disclosed no abnormality of the nerves. He also complained of low back pain, and an MRI (magnetic resonance imaging) of the back conducted in 2005 disclosed spondyloarthropthy of the lumbar spine and spondylosis of the cervical spine. Service connection has been granted for lumbar spine DJD and for a cervical spine disability, and the Veteran seeks higher evaluations, based on complaints of arm and shoulder numbness and left leg numbness. The examiner who conducted 2012 VA examination noted the diagnosis of degenerative disk disease and the Veteran's complaints of lower extremity radicular symptoms. The examiner noted the Veteran's reports of "radicular" symptoms since he began having back pain in service. The examination findings were consistent with the Veteran's lay reports of radicular symptoms. The examiner assigned a diagnosis of bilateral lower extremity radiculopathy, mild, and the report implies that the radiculopathy of the lower extremities is related to the service-connected lumbar spine degenerative joint and disc disease. Resolving reasonable doubt as to interpretation of the report in the Veteran's favor, the examination report is favorable to the Veteran's claim for service connection for numbness of the left leg, diagnosed as radiculopathy. Service connection for radiculopathy, left lower extremity, may be granted. 2. Claim for service connection for numbness, arms and shoulders The Veteran reports numbness of the right arm and pain in the shoulders in service. EMG (electromyogram) and NCS (nerve conduction study) conducted in 2005 disclosed no abnormality of the nerves. On August 2006 VA examination, no objective evidence of numbness in the shoulders or arms was found. Muscle strength and tone and sensation were intact. In late November 2006, less than two weeks before his service separation, the Veteran was seen by a private neurologist, RRN, MD. Dr. N did not describe numbness in the shoulders or arms, and described the Veteran's motor and sensory examinations as normal. On VA examination in January 2008, the examiner described the Veteran's muscle strength and tone as normal. Sensation to light touch and pinprick were normal, and vibratory sensation was described as normal. The examiner did not describe numbness in the upper extremities, and no muscle or nerve deficit was found. In a July 2008 statement, the Veteran indicated that he had pain and numbness in the neck area running down the right arm. He stated that he had muscle "tremors" in the upper back shoulders "day and night." On VA examination conducted in June 2012, the examiner noted that the Veteran had an essential tremor in the right hand. The examiner determined that no neuralgia or neuritis was present, and stated that there were "no radicular symptoms" in the upper extremities. The examiner described the Veteran's limitations of range of motion of the cervical spine, but found no numbness, decrease in muscle strength, or nerve deficit in the upper extremities. The Veteran attributes numbness in the shoulders and arms to cervical spine pain. However, no private or VA provider has described or identified numbness of either shoulder or either arm in a report of objective examination. No diagnosis has been provided for the Veteran's complaints of numbness. The Veteran's complaints of neck pain are attributed to his cervical spine disability, and pain is encompassed in the evaluation assigned for the service-connected spine disability. However, since there is no objective examination that numbness of either shoulder or arm is present, service connection for numbness of the shoulders or arms as a disorder separate from service-connected spine disability is not authorized. The claim must be denied. Applicable Law, Increased Rating Claims The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R., Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the amendment to the Rating Schedule that became effective September 26, 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine, including lumbosacral strain under Diagnostic Code 5237, degenerative arthritis of the spine of the spine under Diagnostic Code 5242, or intervertebral disc syndrome under Diagnostic Code 5243. See 68 Fed. Reg. 51,454, 51,456-57 (Aug. 27, 2003) (effective Sept. 26, 2003). Under this version, disabilities of the spine are to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, which became effective on September 23, 2002. The general rating formula provides for a 10 percent evaluation when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. Lumbosacral strain warrants a 20 percent rating where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (effective Sept. 26, 2003). Further instructions under the general formula provide that neurologic disabilities are to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. at Note 1. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. For limitation of motion of the cervical spine, 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 warrants a 10 percent evaluation. A 20 percent evaluations applies with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or, 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; A 30 percent evaluation is warranted for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. For the purposes of evaluations under diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veterans Court has held that 38 C.F.R. § 4.59 is not limited to claims involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (explaining that VA must address the applicability of § 4.59 in claims involving joint disability where the condition is other than arthritis). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 3. Claim for increased initial evaluation for DJD, lumbar spine On VA examination in August 2006, the Veteran reported chronic low back pain. There was range of motion of the lumbar spine to 60 degrees of forward flexion. The Veteran demonstrated 15 degrees of extension, left and right lateral flexion to 25 degrees, and left and right rotation to 30 degrees, for combined total motion in excess of 120 degrees but less than 235 degrees. The examiner specified that the Veteran's motions were slow and with guarding due to pain at the end of the ranges of motion. The examiner further specified that the Veteran was unable to perform repetitive motions due to pain. As noted above, lumbar spine motion greater than 60 degrees warrants a 10 percent evaluation. In this case, the examiner stated that the Veteran's lumbar motion was to 60 degrees. However, since the Veteran was unable to perform repetition of this motion due to pain, the RO assigned a 20 percent evaluation. The Board agrees that the Veteran's inability to perform repeated motion to 60 degrees of forward flexion approximated the criteria for a 20 percent evaluation. However, such limitation did not meet or approximate the criteria for the next higher rating, a 40 percent evaluation, since that rating is assigned for limitation of lumbar flexion to 30 degrees or less. In a statement submitted electronically on July 31, 2008 statement, the Veteran contended that he could not bend forward more than 15 degrees, he had muscle spasms in the lower back, and was in constant pain. On VA examination conducted in June 2012, the Veteran had forward flexion of the lumbar spine to 30 degrees and was unable to extend at the lumbar spine. The Veteran reported pain with any motion from neutral (0 degrees), including pain on left and right lateral flexion to 10 degrees, with pain beginning at 0 degrees, and left and right lateral rotation to 10 degrees. The Veteran's range of motion was not decreased by repetition of three motions in each plane. The examiner found localized tenderness but no muscle spasm. The Veteran identified all motion as painful. He reported having steroid injections into his spine 4 to 6 times per year. He reported flare-ups of pain 4 to 6 weeks, which would require him to miss work and lie down. During those flare-ups, the Veteran was unable to perform activities of daily living, he reported, as he could not carry anything. The examiner stated that there was no IVDS of the lumbar spine. The Veteran's inability to move in extension, and his complaint that all motion was painful, together with the examiner's notations that there was objective evidence of pain on motion, and the objective evidence that combined range of motion was less than 120 degrees, warrants a 40 percent evaluation. A 40 percent evaluation is the maximum evaluation available based on limitation of motion in the absence of unfavorable ankylosis of the entire thoracolumbar spine, which warrants a 50 percent evaluation. As unfavorable ankylosis of the entire thoracolumbar spine is not shown, the Board reiterates that a 40 percent evaluation for limitation of motion herein assigned in the maximum rating available under the circumstances. The only higher rating available on a schedular basis, a 60 percent rating, is warranted if there are incapacitating episodes with a total duration of 6 weeks in the prior 12 month period. The Veteran reported having steroid shots 4 to 6 times per year, and reported that flare-ups occurred every 4 to 6 weeks on average, but did not report how long such episodes or treatment lasted, on average. However, the Veteran did not report missing 6 weeks of work (42 days) in the prior year. Moreover, the Veteran did not report that he was confined to bedrest on directions of a medical provider during flare-ups. The Board has assumed that the Veteran's report that he requires epidural steroid injections at times are accurate. However, even assuming that each such required episode of medical care results in confinement to bedrest, the Veteran does not meet the criteria for a 60 percent evaluation. Therefore, the 40 percent evaluation assigned herein in the maximum schedular evaluation available, since there is medical opinion that the Veteran does not have intervertebral disc disease (IVDS) of the thoracolumbar spine. Extraschedular consideration The Board has also considered whether the Veteran's lumbar disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, including pain and limitation of motion. Since the assigned 40 percent evaluation encompasses pain, the Board interprets the rating criteria as including the need for medical treatment and treatment with medications for pain. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008) (setting forth a three-step analysis for determining need for referral for extraschedular consideration). If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then VA must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. In this case, the record reflects that the Veteran is outside the continental United States as part of his employment. The Veteran stated, in his 2012 VA examination, that flare-ups of his lumbar disability caused him to miss work every 4 to 6 weeks. The Veteran has not reported that he has been hospitalized at any time during the pendency of the claim. The evidence reflects that the Veteran's lumbar disability does not result in marked interference with work or result in hospitalization. Consequently, even if analysis under Thun progressed from the first step to the second step, the criteria for referral for extraschedular consideration are not met at the second step of the analysis. Referral for extraschedular consideration is not warranted. 4. Claim for increased initial evaluation in excess of 10 percent, cervical spine On VA examination in August 2006, the Veteran demonstrated cervical spine flexion to 35 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right rotation to 60, for combined total motion (245 degrees) in excess of 170 degrees but less than 335 degrees. The examiner specified that the Veteran's motions were slow and with guarding due to pain at the end of the ranges of motion. The examiner further specified that the Veteran was unable to perform repetitive motions due to pain. As noted above, cervical spine motion greater than 15 degrees but not greater than 30 degrees warrants a 20 percent evaluation. In this case, the examiner stated that the Veteran's cervical flexion was to 35 degrees, which warrants a minimum 10 percent disability rating under the general rating formula for the spine. However, the 2006 examination report states Veteran was unable to perform repetitions of any cervical motion at that time, and that there was guarding and pain associated with the motion he was able to accomplish. Moreover, In a July 2008 statement, the Veteran stated that he had muscle spasms in the upper back and was in constant pain. This statement is consistent with the objective observations from the 2006 examination. Upon consideration and application of the provisions of 38 C.F.R. §§ 4.40, 4.45 and the DeLuca factors in conjunction with resolving all reasonable doubt in favor of the Veteran, it is the Board's opinion that there is sufficient evidence of functional loss due to pain that the cervical spine symptoms more closely approximates the next higher rating of 20 percent for the this period of the appeal (prior to June 2012). See also 38 C.F.R. §4.7; Johnston, 10 Vet. App. 80 (1997). On VA examination conducted in June 2012, the Veteran had forward flexion of the neck to 25 degrees and extension to 0 degrees, with objective evidence of pain at 0 degrees of flexion and extension. The Veteran reported pain with any motion from neutral (0 degrees), including pain on left and right lateral flexion to 20 degrees as painful beginning at 0 degrees, and left and right lateral rotation to 30 degrees. The Veteran's range of motion was not decreased by repetition of three motions in each plane. The examiner found localized tenderness but no muscle spasm. Radiologic examination conducted in May 2012 confirmed early osteophyte formation at C5-6 and minimal degenerative disease of the lumbar spine. The examiner determined that the Veteran did not have IVDS of the cervical spine, but there was osteophyte formation. The examiner stated that there was no radiculopathy from the cervical spine and that an essential tremor in the right hand was unrelated to the cervical spine disability. The Veteran's range of flexion of the cervical spine changed by less than 20 degrees during the period between VA examinations. The Veteran's flexion decreased from 35 degrees of flexion to 25 degrees of flexion, but the Veteran was able to perform 3 repetitions of the motion. The criteria for a 30 percent evaluation for limitation of the cervical spine are forward flexion of 15 degrees or less, or favorable ankylosis of the cervical spine. The Veteran retains more than 150 degrees of motion of the cervical spine, which does not meet or approximate favorable ankylosis. Even though the Veteran was unable to extend the cervical spine at the time of the 2012 VA examination, the Board does not find this to be a marked change from the 2006 examination, when the Veteran was able to extend to 30 degrees but unable to perform repeated motion. As the Veteran does not demonstrate limitation of cervical flexion to less than 15 degrees, or favorable ankylosis, the criteria for an evaluation in excess of 20 percent for limitation of motion of the cervical spine are not met. Extraschedular consideration The Board has also considered whether the Veteran's cervical spine disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). As noted above, 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. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, including pain and limitation of motion. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, supra. If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. In this case, the record reflects that the Veteran is outside the continental United States as part of his employment. In 2012, the Veteran indicated that all motion of the cervical spine was painful. However, he did not report that cervical spine pain caused him to miss work, required hospitalization, or presented a factor of disability other than pain. The evidence reflects that the Veteran's cervical disability does not result in marked interference with work or result in hospitalization. Consequently, even if analysis under Thun progressed from the first step to the second step, the criteria for referral for extraschedular consideration are not met at the second step of the analysis. Referral for extraschedular consideration is not warranted. ORDER The appeal for service connection for radiculopathy, left leg, claimed as numbness, left leg, is granted. Entitlement to service connection numbness of the arms and shoulders is denied. The criteria for an increase in the initial rating for degenerative joint disease of the lumbar spine from 20 percent to 40 percent are met from July 31, 2008, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. The criteria for an increase in the initial rating for cervical spine disability from 10 percent to 20 percent are met, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs