Citation Nr: 1315036 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 07-28 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for cervical myositis with degenerative joint and disc disease, from July 21, 2006 until December 16, 2008. 2. Entitlement to an evaluation in excess of 20 percent for cervical myositis with degenerative joint and disc disease, from December 16, 2008. 3. Entitlement to an evaluation in excess of 40 percent for arthritis and herniated nucleus pulposus of the thoracolumbar spine, status post laminectomy. 4. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the lower left extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from February 1970 to March 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO granted a 10 percent disability rating for cervical myositis with cervical degenerative joint disease (previously rated as cervical spine pain) effective July 21, 2006; continued a 10 percent disability rating for radiculopathy of the left lower extremity and a 40 percent disability rating for low back pain with arthritis at thoracic T9-T10 HNP L5-S1, status post laminectomy; denied service connection for posttraumatic stress disorder (PTSD) and denied entitlement to individual unemployability due to service-connected disabilities (TDIU). Jurisdiction over the Veteran's case was subsequently transferred to the St. Petersburg, Florida RO. In a February 2010 rating decision, the RO granted a 20 percent disability rating, effective December 16, 2008. The Veteran has not withdrawn her claim and is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2010, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. This matter was previously before the Board in May 2011. The Board granted service connection for an acquired psychiatric disorder, which the RO initiated in a June 2011 rating decision. The grant of service connection was a full grant of the appeal and the Veteran did not appeal the rating granted by the RO. As such, that claim is not currently before the Board. In May 2011, the Board also remanded the remaining claims for additional development. In a September 2012 rating decision, the Appeals Management Center (AMC) granted TDIU, effective July 21, 2006 (the date the Veteran's claim for benefits was received by VA). As TDIU has been fully granted, that claim is not currently before the Board. In the September 2012 rating decision, the AMC also granted service connection for cervical radiculopathy of the right and left upper extremities(with 20 percent disability ratings effective April 3, 2000). The Veteran did not file a notice of disagreement with either of those grants. As such, the issues of cervical radiculopathy of the upper extremities are not before the Board as part of the claim for an increased rating for the cervical spine disability. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to a rating in excess of 10 percent for L4-L5 radiculopathy of the right lower extremity, and entitlement to service connection for dystonia/tardive dyskinesia as secondary to medications taken for service-connected psychiatric disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From July 21, 2006 until December 16, 2008, the Veteran's cervical spine disability is manifested by muscle spasm or guarding severe enough to result in an abnormal spinal contour, such as reversed lordosis, but not ankylosis or forward flexion of 15 degrees or less. 2. From December 16, 2008, the Veteran's cervical spine disability is not manifested by ankylosis or forward flexion of 15 degrees or less. 3. The Veteran's thoracolumbar spine disability is not manifested by ankylosis. 4. The Veteran's left lower extremity disability is not manifested by moderate, incomplete paralysis. CONCLUSIONS OF LAW 1. From July 21, 2006 until December 16, 2008, the criteria for an evaluation of 20 percent, and no higher, for a cervical spine disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2012). 2. From December 16, 2008, the criteria for an evaluation in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2012). 3. The criteria for an evaluation in excess of 40 percent for a thoracolumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2012). 4. The criteria for an evaluation in excess of 10 percent for a left lower extremity disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist With regard to the claim for increased ratings, VA has met the duty to notify and assist the claimant in substantiating this claim for VA benefits, as provided by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim. Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2011). Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). In this case, an August 2006 letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran prior to the initial RO decision that is the subject of this appeal. Through the letter VA informed the Veteran that the evidence must support a worsening of her disabilities to substantiate the claims. The letter also informed her of VA's duty for obtaining pertinent evidence under federal control and that it would aid her in obtaining pertinent evidence not under federal control, but that it was her responsibility to obtain such evidence. That letter also included notice consistent with Dingess requirements, of the type of evidence necessary to establish an effective date for the disability on appeal. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to her claim, and affording her an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to records, VA has associated with the claims folder the Veteran's service treatment records, pertinent VA medical records and private medical records. The Board notes that although the RO did not receive a direct response to its request for private medical records from Fletcher Health and Rehabilitation Center (identified by the Veteran in a June 2008 VA Form 21-4142). However, Rio Pinar Health Care, in its response to the RO's record request, provided its medical records and records from Fletcher Health and Rehabilitation Center for the time periods identified by the Veteran. The Veteran has not indicated that there exist any records of VA or private VA medical treatment relative to this claim that are not already in the claims file. Additionally, the Board notes that the Fletcher Health and Rehabilitation Center records associated with the claims file document treatment for the Veteran's non-service-connected right ankle fracture. As such, the Board finds that the Veteran was not prejudiced by the RO's failure to obtain records directly from the Fletcher Health and Rehabilitation Center. In June 2010, the Veteran also had an opportunity to set forth her contentions during the hearing before the undersigned Veterans Law Judge. The development directed by the Board in the May 2011 Board decision has also been accomplished. The AMC associated the Veteran's most recent VA medical records and Social Security Administration (SSA) records. The Veteran also underwent new VA examinations for the current claims in October 2011, which included specific medical opinions pertinent to the issues on appeal and findings sufficient to make a decision. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). Increased Rating Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Cervical and Thoracolumbar Spine Disabilities Factual Background In a statement received by VA on July 21, 2006, the Veteran reported that her thoracolumbar back disability was more severe than previously rated and that she had increased pain of the cervical spine. In October 2006, the Veteran underwent a VA examination. The VA examiner found no cervical or thoracolumbar ankylosis. The October 2006 VA examiner noted cervical active and passive ranges of motion of flexion of zero to 40 degrees, extension of zero to 30 degrees, bilateral lateral flexion of zero to 20, bilateral lateral rotation of zero to 60 degrees. Pain was noted throughout each range of motion. There was also additional limitation of motion on repetitive use of the cervical spine of 40 to 45 degrees of flexion; 30 to 45 degrees extension, 20 to 25 degrees for bilateral flexion; and 60 to 80 degrees for bilateral rotation. The October 2006 VA examiner also noted thoracolumbar active and passive ranges of motion. Findings included flexion of zero to 30 degrees, extension of zero to 5 degrees, bilateral lateral flexion of zero to 20 degrees and bilateral lateral rotation of zero to 20 degrees. Pain was noted throughout each range of motion. There was additional limitation of motion on repetitive use of 30 to 90 degrees of flexion; 5 to 30 degrees extension, 20 to 30 degrees for bilateral flexion; and 20 to 30 degrees for bilateral rotation. The October 2006 VA examiner diagnosed the Veteran with low back pain with arthritis at thoracic T9-T10, herniated nucleus pulposus at L5-S1; status post laminectomy and secondary lumbar myositis. The examiner also diagnosed the Veteran with cervical degenerative joint disease and discogenic disease and secondary cervical myositis. Private medical records, including from Rio Pinar Health Care and Fletcher Health and Rehabilitation, do not include any medical evidence for rating purposes. In October 2008, the Veteran underwent a VA nerve conduction study for her numbness, weakness and pain in the arms and legs, as well as neck and low back pain. The examiner found sensory peripheral neuropathy affecting the arms and legs, right carpal tunnel syndrome, bilateral C5, 6 radiculopathies and right L5, S1 radiculopathy. In December 2008, the Veteran underwent another VA spine examination, which included a review of the claims file. The examiner noted that the Veteran notably had been involved in a motor vehicle accident in 2003. The Veteran complained of fatigue, decreased motion, stiffness, weakness, spasms and pain, which radiated to the right leg. She also reported occasional disabling episodes (every several weeks) that required rest to resolve. The Veteran used a brace and walker and reported being unable to walk more than a few yards. The December 2008 VA examiner found the Veteran's posture and gait to be normal. The examiner found no abnormal spinal curvatures, including no cervical or thoracolumbar ankylosis. The examiner did find cervical spasms, guarding, pain with motion, and left side tenderness. The examiner found no cervical atrophy, right side tenderness or weakness. The examiner found thoracolumbar left side spasm and bilateral guarding, pain with motion and tenderness. However, the examiner found there no muscle spasm or localized tenderness or guarding severe enough to be responsible for abnormal gait or spinal contour. The December 2008 VA examiner found cervical range of motion of zero to 30 degrees of flexion, zero to 30 degrees of extension, bilateral lateral flexion of 40 degrees and bilateral lateral rotation of zero to 70 degrees. The examiner noted objective evidence of pain on active range of motion, but found no objective evidence of pain following repetitive motion or additional limitations after three repetitions of range of motion. The December 2008 VA examiner found thoracolumbar range of motion of zero to 40 degrees of flexion, zero to 10 degrees of extension, bilateral lateral flexion of 10 degrees and bilateral lateral rotation of zero to 20 degrees. The examiner found no objective evidence of pain on active range of motion or repetitive motion and no additional limitations after three repetitions of range of motion. The December 2008 VA examiner further noted that the Veteran had no incapacitating episodes due to intervertebral disc syndrome, but was unemployed due to her spine disease. The examiner diagnosed her with cervical spine degenerative disc disease and lumbar degenerative disc disease and that her current disability level for such diseases was mild to moderate. During her June 2010 Board hearing, the Veteran reported that she had radiating back pain, that her back muscles cramped and that she wore a back brace. In a lay statement from R.W.H., the Veteran friend reported witnessing the Veteran have back and neck problems over the past thirty plus years. In October 2011, the Veteran underwent a VA examination for the spine, which included a review of the claims file. The cervical spine examination documented findings of cervical degenerative joint disease and degenerative disc disease with myelopathy. The Veteran complained of constant pain, usually 8-9/10 and having to lie down, with biweekly flareups causing her to lie down. The VA examiner noted cervical flexion to 40 degrees (pain at 40 degrees), extension to 20 degrees (pain at 10 degrees), bilateral lateral flexion to 20 degrees (pain at 10 degrees for the right side and no painful motion on the left side) and bilateral lateral rotation to 45 degrees (no painful motion). Following repetitive motion, the ranges of motion did not change and the examiner found no additional limitation. The examiner found functional impairment of less movement than normal and pain on movement. The examiner further noted muscle spasm or guarding that did not result in abnormal gait or spinal contour. The October 2011 VA examiner further noted that the Veteran had intervertebral disc syndrome of the cervical spine, but no incapacitating episodes over the past 12 months due to the intervertebral disc syndrome. The October 2011 VA examiner also diagnosed the Veteran with lumbar degenerative disc disease with myelopathy and lumbar degenerative joint disease/spondylosis. The Veteran reported continuous low back pain, usually 10/10 with primarily aching/tightness/pressure and occasional sharp pains when going from sitting to standing. She reported difficulty doing activities of daily living. The October 2011 VA examiner noted thoracolumbar spine range of motion measurements of 45 degrees forward flexion (pain at 30 degrees), extension to zero degrees (with pain at zero degrees), bilateral lateral flexion to zero degrees (with pain at zero degrees) and bilateral lateral rotation to 15 degrees (pain at zero degrees). Following repetitive motion, the only range of motion to change was to 40 degrees of forward flexion. The examiner also noted that following testing the Veteran had less movement than normal, pain on movement and disturbance of locomotion. The examiner further noted localized moderate tenderness to palpation of the paraspinal and bilateral sacroiliac joints into buttocks, as well as guarding or muscle spasm of the thoracolumbar spine, resulting in abnormal gait. The October 2011 VA examiner found no other neurologic abnormalities related to the thoracolumbar spine (such as bowel or bladder problems). The examiner also found intervertebral disc syndrome of the cervical or thoracolumbar spine, but no incapacitating episodes over the past 12 months due to intervertebral disc syndrome. Cervical Spine Analysis The Veteran contends that her cervical spine disability is more severe than indicated by the 10 percent disability rating she received, from July 21, 2006 until December 16, 2008 (initially granted in the January 2007 rating decision), and the 20 percent disability rating she received, from December 16, 2008 (initially granted in the September 2012 rating decision). Cervical spine disabilities are rated on the basis of limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. A note following the schedular criteria indicates that, for VA compensation purposes, normal forward flexion of the cervical spine is from 0 to 45 degrees, extension from 0 to 45 degrees, left and right lateral flexion from 0 to 45 degrees, and left and right lateral rotation from 0 to 80 degrees. C.F.R. § 4.71a. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Diagnostic Codes 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or a 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 disability evaluation of 30 percent would be warranted upon a showing of favorable ankylosis of the entire cervical spine or forward flexion of the cervical spine of 15 degrees or less. A 40 percent evaluation would only be warranted if there is unfavorable ankylosis of the entire cervical spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For the period from July 21, 2006 until December 16, 2008, the evidence of record supports finding that a 20 percent disability rating, and no higher, is warranted. The only relevant evidence for this time period is the October 2006 VA examination report. That VA examiner found the Veteran to have forward flexion of the cervical spine greater than 30 degrees (40 to 45 degrees active and passive motion and 30 to 90 degrees following repetitive motion). The majority of forward flexion findings show ranges of motion that greater than 30 degrees and thus do not support a 20 percent disability rating. Additionally, the combined range of motion of the cervical spine was greater than 170 degrees and also thus do not support a 20 percent rating. Even considering the lowest range of motion findings found by the examiner (30 degrees flexion, 30 degrees extension, 20 degrees bilateral lateral flexion and 60 degrees bilateral rotation for a combined range of motion of 220 degrees). However, the October 2006 VA examiner found cervical spasm and guarding severe enough to result in an abnormal gait (antalgic) and abnormal spinal contour, including reversed lordosis. As such, the Board finds that a 20 percent disability rating is warranted from July 21, 2006 until December 16, 2008. A disability rating in excess of 20 percent, however, is not warranted at any time during the appeal period (including from July 21, 2006 until December 16, 2008 and from December 16, 2008). The next higher 30 percent disability rating would only be warranted upon a showing of favorable ankylosis of the entire cervical spine or forward flexion of the cervical spine of 15 degrees or less. Furthermore even higher ratings would only be warranting for ankylosis over a greater area of the spine. None of the VA examiners have found forward flexion of 15 degrees or less. Forward flexion findings included of 30 degrees in the October 2006 and December 2008 VA examinations and 40 degrees in the October 2011 VA examination. To the extent that the Veteran may be reporting pain associated with her full range of motion, the Court has recently held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 42 (2011). Indeed, the Court found that nothing in its case law supports an appellant's contentions that she should be given the maximum disability ratings under Diagnostic Code 5260 and 5261 simply because she experienced pain throughout the range of motion of her left knee. Id. at 11. Additionally, the VA examiners have consistently found the Veteran to have cervical range of motion and no ankylosis. The October 2006 and December 2008 VA examiners specifically found no cervical spine ankylosis. The Board further notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the ranges of motion found by the VA examiners including the October 2011 VA examiner, who did not provide a specific finding regarding ankylosis, the Board finds that that the Veteran does not have ankylosis. It is necessary to consider, along with the schedular criteria, functional loss due to flareups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Board finds that there is evidence of functional impairment as a result of flareups of symptomatology, but that this functional impairment was contemplated by the RO when granting the 20 percent disability evaluations. The Board notes that the Veteran would only qualify for an increased rating from 20 percent with a finding of ankylosis, which is not of record, or an even greater limitation of forward flexion than ever found by the examiner, even when considering pain. The Board must also evaluate any associated objective neurological abnormalities separately under an appropriate diagnostic code. Under Note 1, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. As previously noted, in a September 2012 rating decision the AMC granted service connection for cervical radiculopathy of the right and left extremities. The Veteran did not file a notice of disagreement with that decision and those issues are not before the Board. Bowel or bladder impairment and neurological impairment of the lower extremities will be addressed in the lumbar spine analysis of this decision. With respect to intervertebral disc syndrome, under Diagnostic Code 5243, based on incapacitating episodes, a 40 percent rating evaluation, which is the next higher rating possible after the 20 percent rating, would require incapacitating episodes of a total duration of at least four weeks but less than six weeks during the past 12 months, with an "incapacitating episode" defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. No evidence shows that the Veteran had incapacitating episodes prescribed by a physician or as part of a physician's treatment for her service-connected back disability. There is also no evidence that the Veteran was ever hospitalized for her disability. The October 2006 VA examiner found the Veteran's reports of bed rest to be described as "LIKE A LIGHT DUTY STATUS" and found that there had been no medical certificates issued for strict bed rest for intervertebral disc syndrome. The December 2008 and October 2011 VA examiners also found that the Veteran did not have incapacitating episodes due to intervertebral disc syndrome. The Board thus finds that from July 21, 2006 until December 16, 2008 a 20 percent disability rating is warranted. However, a disability rating in excess of 20 percent is not warranted from July 21, 2006 until December 16, 2008 or from December 16, 2008. Lumbar Spine Analysis The Veteran contends that her thoracolumbar spine disability is more severe than indicated by her 40 percent disability rating. Lumbar spine disabilities are rated on the basis of limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedular criteria indicates that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension from 0 to 30 degrees, left and right lateral flexion from 0 to 30 degrees, and left and right lateral rotation from 0 to 30 degrees. C.F.R. § 4.71a. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Diagnostic Codes 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under the formula, 40 percent evaluation would only be warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation, which would be the next higher applicable rating, would only be warranted for unfavorable ankylosis of the entire thoracolumbar spine. The next higher rating would be a 100 percent evaluation for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The evidence of record generally consists of some VA medical records documenting complaints of, or treatment for, the spine and other disorders. Additionally, private medical records also document complaints of, or treatment for, various skeletal disorders. Such records, however, generally do not include information for the current rating purposes. Under Diagnostic Code 5243, the next-higher 50 percent evaluation would only be warranted for unfavorable ankylosis of the entire thoracolumbar spine. An even higher rating would only be warranted for a finding of unfavorable ankylosis of the entire spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the ranges of motion found by the VA examiners in October 2006, December 2008 and October 2011, the Board finds that that the Veteran does not have ankylosis. Additionally, the October 2006 and December 2008 VA examiners specifically found the Veteran to not have ankylosis. As such, a disability rating in excess of 40 percent is not warranted. To the extent that the Veteran may be reporting pain associated with her full range of motion, the Court has recently held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell, 25 Vet. App. at 42. Indeed, the Court found that nothing in its case law supports an appellant's contentions that she should be given the maximum disability ratings under Diagnostic Code 5260 and 5261 simply because she experienced pain throughout the range of motion of her left knee. Id. at 11. It is necessary to consider, along with the schedular criteria, functional loss due to flareups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Board finds that there is evidence of functional impairment as a result of flareups of symptomatology, but that this functional impairment was contemplated by the RO when granting the 40 percent disability evaluation. Even when considering the Veteran's pain with motion and her reports of loss of motion, the Veteran still does not meet the criteria for a disability rating in excess of 40 percent. The Board notes that the rating contemplates complaints of pain, especially on extended use. There is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain. The next higher ratings applicable for the Veteran require ankylosis of the spine, showing no range of motion. Any additional loss of range of motion short of ankylosis would not support a higher rating for the Veteran's claim. Additionally, Diagnostic Code 5243, Note 1 indicates that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. The Board notes that prior to this appeal, the Veteran already had separate ratings for radiculopathy of the right and left lower extremities. The left lower extremity disability will be addressed later in this decision, as it has been separately appealed. Additionally, as noted in the Introduction section of this decision, the Veteran also separately claimed (in July 2006) an increased rating for the right lower extremity disability and that claim was referred for separate adjudication in the May 2011 Board decision and again in the current decision. As such, that matter is not before the Board. The record does not support finding that the Veteran has a bowel or bladder neurologic abnormality. In the October 2006 VA examination, the Veteran reported having urinary, but not fecal, incontinence. The VA examiner, however, did not opine as to whether her urinary incontinence was due to her service-connected spine disabilities. In August and December 2010 VA neurology notes, the VA medical provider noted a history of urinary incontinence/leakage but no bowel incontinence. The VA medical provider, however, also did not provide a medical opinion as to whether such incontinence was a neurologic abnormality. The October 2011 VA examiner found the Veteran to not have any other neurologic abnormalities, such as bowel or bladder problems. Additionally, the October 2011 general VA examiner specifically found no genitourinary conditions. The only medical opinion to directly address whether the Veteran has bladder or bowel neurologic abnormality is the October 2011 spine VA examiner. That VA examiner specifically found no neurologic abnormalities, other than those for which the Veteran already has service connection (radiculopathy of the bilateral lower extremities). As such, the Board finds that a separate rating for a neurologic abnormality, other than the ones for which the Veteran already has separate ratings for, is not warranted. The Veteran also does not have incapacitating episodes due to her lumbar spine disability. Under the current regulations, Diagnostic Code 5243, intervertebral disc syndrome can be rated under the General Rating Formula for the Spine or based on incapacitating episodes. Under Diagnostic Code 5243, based on incapacitating episodes, a 60 percent rating evaluation would require incapacitating episodes of a total duration of at least 6 weeks during the past 12 months, with an "incapacitating episode" defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The October 2006 VA examiner found the Veteran's reports of bed rest to be analogous to a light duty status and found that there had been no medical certificates issued for strict bed rest for intervertebral disc syndrome. The December 2008 and October 2011 VA examiners also found that the Veteran did not have incapacitating episodes due to intervertebral disc syndrome. There is also no evidence that the Veteran was hospitalized for her disability during the appeal. As such, a rating in excess of 40 percent is not applicable. As the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The Veteran's claim for a disability rating in excess of 40 percent for her thoracolumbar spine disability is denied. Left Lower Extremity Disability Factual Background The Veteran is service-connected for L4-L5 radiculopathy of the left lower extremity. During her September 2006 VA peripheral nerves examination, the Veteran complained of pain and fatigue in the legs, sometimes requiring bedrest. She also noted occasional loss of balance and falling, and daily numbness of the calves. She indicated that she was independent in daily activities, but limited due to pain. The examiner diagnosed her with chronic right L4-L5 radiculopathy (right lower extremity) and did not diagnose her with radiculopathy of the left lower extremity. In October 2006, the Veteran underwent a VA spine examination. She indicated that she was independent in daily activities, but limited due to pain. The VA examiner found left lower extremity muscle testing to be 5/5 for all muscles, except the hamstring which was 4/5. The examiner noted pinprick and light touch to be decreased in the left lower extremity (from thigh downward) and more decreased from the calf and not involving the feet. The examiner noted irridation to the legs, but no weakness found in examination. Private medical records, including from Rio Pinar Health Care and Fletcher Health and Rehabilitation, do not include any medical evidence for rating purposes for left lower extremity disability. Rio Pinar Health Care records generally documented treatment for a non-service-connected ankle fracture. The April 7, 2008 Fletcher Health and Rehabilitation initial evaluation documented that the Veteran was receiving therapy in regards to her fractured right ankle, following a post-service accident. Subsequent records recorded her receipt of strengthening exercises of the lower extremities. An October 2008 VA medical record documented findings of normal motor bulk and tone, without drift, but positive very mild postural tremor. The examiner noted that the Veteran had poor balance and had been using a walker for the past six to seven years. The provider diagnosed the Veteran with paresthesias and suspect diabetic peripheral neuropathy. In a November 2008 VA medical record, the VA medical provider noted a report of weakness of the legs, a steady gait, slurred speech and confusion. The Veteran also reported falling and that she had been found to have a high lithium level. She further reported that she did not want to go back on lithium, in part due to her improved tremors since going off it. In December 2008, the Veteran underwent a VA spine examination, which included a review of the claims file. The examiner found lower extremity muscle tone to be normal and no muscle atrophy. The examiner also found no abnormal sensation of the lower extremities. The examiner only found sensory loss for the right lower extremity. In February 2010, a VA medical provider found the Veteran to have paresthesias, likely diabetic peripheral neuropathy. An April 2010 EMG report, from S.G. Sable, D.O., showed findings of diffuse generalized polyneuropathy. The examiner noted that although it is sometimes difficult to diagnosed superimposed lumbosacral radiculopathy in the face of diffuse abnormalities due to peripheral neuropathy, there was evidence of ongoing denervation throughout the right lumbosacral paraspinal muscles. The examiner further found diffuse and extensive abnormality of the right L5 more so than the S1 muscles, which is not observed at all on the left. Such findings were indicative of right radiculopathies. The examiner further found no electrophysiologic evidence other superimposed bilateral lower extremity radiculopathy. During her June 2010 Board hearing, the Veteran reported that her lower back affected both her legs and made her unable to walk without a walker. She also reported weakness in her legs. In a July 2010 MRI report of the lumbar spine, Dr. A. Aboud found postsurgical findings on the right at L5-S1 with epidural scar formation engulfing the right S1 nerve root, adjacent facet hypertrophy may also cause nerve root compression. The examiner further found degenerative disc disease at L5-S1 and to a lesser extent L4-L5 and L2-L3, with no other acute abnormality. An August 2010 VA medical provider noted that an April 2010 EMG showed diffuse generalized sensorimotor peripheral neuropathy and superimposed remote radiculopathy. The examiner found diabetic peripheral neuropathy, with remote right lower extremity L5>S1 radiculopathy status post lumbar discectomy. In an October 2010 VA medical record, the VA medical provider noted that the Veteran had a history of chronic lower back pain and right sided sciatica. The provider noted 5/5 movement of the extensions and grossly normal sensation, and though her straight leg test was positive, her reflexes were non-pathologic. In a December 2010 MRI report of the cervical spine, Dr. A. Aboud found a bulging disc material and degenerative changes to a variable degree throughout the cervical spine In a December 2010 VA medical record, the VA medical provider again found diabetic peripheral neuropathy, with remote right lower extremity L5>S1 radiculopathy status post lumbar discectomy. In October 2011, the Veteran underwent a VA examination for peripheral neuropathy. The examiner found the Veteran to have bilateral carpal tunnel syndrome, cervical radiculopathy and diabetic peripheral neuropathy of the upper and lower extremities. The examiner found mild, intermittent left lower extremity pain, paresthesias and/or dysesthesias and numbness. The examiner also found 5/5 muscle strength of the left lower extremity, except for 4/5 ankle dorsiflexion and no muscle atrophy. The examiner also noted 1+ (hypoactive) left ankle and knee, decreased left lower extremity sensory examination of the lower leg/ankle and foot/toes, and decreased vibration and pain. The examiner found a slow, moderately antalgic gait, caused by the lumbar spine condition, bilateral knee condition, right ankle condition, bilateral feet condition (diabetic neuropathy plus calcaneal spurs). The October 2011 VA examiner also noted that the sciatic nerve, internal popliteal (tibial) nerve, posterior tibial nerve, anterior crural (femoral) nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the tight and ilio-inguinal nerve were normal when tested for paralysis. However, the examiner also found mild, incomplete paralysis of the external popliteal (common peroneal) nerve, musculocutaneous (superficial peroneal) nerve, anterior tibial (deep peroneal) nerve. The examiner also noted occasional use of a brace and regular use of a cane and walker. The October 2011 VA examiner found that there was no functional impairment of an extremity such that there was no effective function remaining other than that which would be equally well served by an amputation with prosthesis. The examiner also noted the peripheral nerve condition impacted the Veteran's ability to drive, walk and stand. The October 2011 VA examiner opined that due to the Veteran's multiple diagnoses (including non-service-connected diabetes mellitus), 40 percent of the Veteran's bilateral lower extremities symptoms were due to diabetic peripheral neuropathy, 40 percent to lumbar radiculopathy and 20 percent due to calcaneal spurs. Left Lower Extremity Analysis The Veteran contends that her radiculopathy of the left lower extremity is more severe than indicated by the 10 percent disability rating previously granted. Her disability has been rated by the applicable diagnostic code provisions providing the rating criteria for disabilities of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The October 2011 VA examiner is the first medical professional of record to make specific findings regarding the left lower extremity, including separate studies the Veteran's left lower extremity nerves. That VA examiner found the left sciatic nerve to be normal. As such, a rating under Diagnostic Code for the sciatic nerve does not accurately describe the Veteran's left lower extremity radiculopathy. The October 2011 VA examiner found the Veteran to have mild incomplete paralysis of the external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal) and internal popliteal (tibial) nerves. Although different nerves have been associated, the symptomatology associated with the left lower extremity (principally mild, incomplete paralysis of the left lower extremity) appears to be impossible to separate. In essence, those nerves are effectively one disability. There is no indication in the medical records that the different nerves call for separate methods of treatment or otherwise should be separately rated. To rate the disorders separately would amount to prohibited pyramiding. The disorders effectively constitute one disability, and to separately rate the Veteran's symptoms would constitute improper pyramiding. Giving the Veteran the benefit of the doubt, the Board will rate the Veteran under Diagnostic Code 8521 for external popliteal nerve (common peroneal), as of the majority of the affected nerves, that diagnostic code allows for the highest possible rating of 40 percent in general. The Board notes that Diagnostic Code 8524 for the internal popliteal nerve (tibial) also allows for a 40 percent rating. Both Diagnostic Codes 8521 and 8525, however, generally have identical rating criteria for incomplete paralysis of the nerves. As the Veteran does not have more than incomplete paralysis, the Veteran is not prejudiced by rating her under Diagnostic Code 8521 instead of Diagnostic Code 8524. Under Diagnostic Code 8521, mild incomplete paralysis warrants a 10 percent disability rating. Moderate incomplete paralysis warrants a 20 percent disability rating. Severe incomplete paralysis warrants a 30 percent disability rating. Complete paralysis where the foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes warrants a 40 percent disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The record generally indicates that the Veteran's lower extremity peripheral neuropathy is at most mild, thus, warranting no more than the currently assigned 10 percent disability rating for mild incomplete paralysis. Prior to the October 2011 VA examination, the VA and private medical records have generally indicated that the Veteran did not have radiculopathy of the left lower extremity or no more than mild symptoms. At most the October 2006 VA spine examiner noted some irridation to the leg and the September 2006 VA peripheral nerves examiner diagnosed her with chronic right L4-L5 radiculopathy (right lower extremity), but did not diagnose her with radiculopathy of the left lower extremity. The October 2008 and February 2010 VA medical providers noted paresthesias, but also associated them to likely (non-service-connected) diabetic peripheral neuropathy. The April 2010 EMG report only noted abnormal findings regarding the right lower extremity and not the left. The July 2010 MRI report included findings of possible nerve root compression on the right, but not the left. An October 2010 VA medical provider noted that the Veteran had a history of chronic lower back pain and only right sided sciatica. The provider noted that the Veteran had 5/5 movement of the extensions and grossly normal sensation. The December 2010 VA medical provider similarly noted radiculopathy of the right lower extremity, but not the left. Similarly, prior to the October 2011 VA examination, the October 2006 VA examiner found no lower extremity weakness and decreased pinprick and light touch sensation testing. The December 2008 VA examiner found left lower extremity muscle tone to be normal, no muscle atrophy and no abnormal sensation of the lower extremities. The examiner only found sensory loss for the right lower extremity, but did not make such findings for the left lower extremity. The October 2011 VA examiner found the Veteran to have mild, intermittent left lower extremity pain, paresthesias and/or dysesthesias and numbness. Upon testing, the examiner found the Veteran's external popliteal nerve to be characterized by mild, incomplete paralysis. Additionally, the October 2011 VA examiner opined that due to the Veteran's multiple diagnoses (including non-service-connected diabetes mellitus), 40 percent of the Veteran's bilateral lower extremities symptoms were due to diabetic peripheral neuropathy, 40 percent to lumbar radiculopathy and 20 percent due to calcaneal spurs. The Board notes that several medical records and statements from the Veteran show that she appears to contend that her difficulty walking is due to her left lower extremity radiculopathy. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, determining the degree of disability of a nerve and ascribing physical manifestations to the disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). "Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The competent medical evidence of record is thus consistent with finding at most mild, incomplete paralysis. The majority of the medical evidence of record indicates that the Veteran's symptoms mainly consist of only sensory involvement, when radiculopathy was found. Under 38 C.F.R. § 4.124a, such a level of involvement is for mild or at most moderate incomplete paralysis. As such, a disability rating in excess of 10 percent is not warranted. Indeed, the Board notes that even if, for the sake of argument, the Board were to consider the Veteran's symptoms consistent with a more severe level of paralysis (such as moderate, incomplete paralysis warranting a 20 percent disability rating or severe incomplete paralysis warranting a 30 percent disability rating), the October 2011 VA examiner specifically found only 40 percent of the Veteran's left lower extremity symptoms to be due to lumbar radiculopathy and the rest to be due to non-service-connected disabilities (40 percent to diabetic peripheral neuropathy and 20 percent to calcaneal spurs). As such, the Veteran would still be considered to have at most mild, incomplete paralysis. Furthermore, the record does not support finding that the Veteran has complete paralysis of the left lower extremity. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. The Veteran's claim for a disability rating in excess of 10 percent for left lower extremity radiculopathy is denied. Extraschedular Considerations Finally, none of the disabilities warrant referral for extra-schedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In the present case, the Board notes that it as considered Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all potentially service-connected symptoms, including, but not limited to cervical and lumbar spine pain, loss of motion and stiffness, and left lower extremity mild, incomplete paralysis to one service-connected condition or another. Here, the rating criteria are not inadequate. Higher ratings are available for the service-connected disability when it is more severe; however the Veteran does not meet those criteria. The Board also finds that no exceptional or unusual factors are in evidence. The Board further notes that although the Veteran's lumbar and cervical spine disabilities interfere with her employment, the Veteran has already been granted TDIU for the full period of the current appeal and that the grant of TDIU already encompasses the question of her inability to work. Additionally, the disability does not cause frequent periods of hospitalization, which would warrant an extraschedular evaluation. The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. ORDER From July 21, 2006 until December 16, 2008, entitlement to a disability rating of 20 percent, and no more, for the Veteran's cervical myositis with degenerative joint and disc disease is granted, subject to the laws and regulations governing the award of monetary benefits. From December 16, 2008 an evaluation rating for in excess of 20 percent for cervical myositis with degenerative joint and disc disease is denied. An evaluation in excess of 40 percent for arthritis and herniated nucleus pulposus of the thoracolumbar spine, status post laminectomy is denied. An evaluation in excess of 10 percent for radiculopathy of the left lower extremity is denied. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs