Citation Nr: 1315073 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-23 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether severance of service connection for cervical spine disability was proper 2. Entitlement to a compensable initial evaluation for a service-connected cervical spine disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active military duty from September 1983 to December 2005. This matter was last before the Board of Veterans' Appeals (Board) in August 2012, on appeal from a January 2007 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO issued a January 2007 rating decision that denied entitlement to service connection for a back disability and a right wrist disability, but granted service connection for cervical spine disability and assigned a non-compensable evaluation, effective January 1, 2006. In October 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2009. The RO subsequently issued an August 2009 letter proposing to sever service connection for the cervical spine disability. A December 2010 rating decision effectuated that severance, effective March 1, 2011. The RO issued a supplemental SOC in January 2011. In January 2012, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is in the record and reflects that the Veteran was afforded an extensive opportunity to present hearing testimony, evidence, and argument on the matter on appeal. In August 2012, the Board granted entitlement to service connection for a right wrist disability and remanded the remainder of the appeal for additional development. The Appeals Management Center (AMC) notified the Veteran in a September 2012 letter that service connection had been granted for her right wrist disability. In March 2013, the AMC issued a rating decision granting entitlement to service connection for a back disability. As these rating actions were issued prior to the recertification of the appeal to the Board, and the Veteran has not submitted a notice of disagreement as to the disability rating or effective date assigned for the grant of service connection for the right wrist disability or for the back disability, these issues are not before the Board. 38 C.F.R. § 20.201 (2012); Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The AMC/RO completed additional development on the appeal, issued a supplemental SOC in February 2013, and returned the claims file to the Board for appellate disposition. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file revealed additional medical evidence which has been carefully reviewed by the Board. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the issues herein decided have been accomplished. 2. The RO granted service connection for a cervical spine disability in January 2007 and assigned a non-compensable rating, which the Veteran timely appealed. 3. During the pendency of the Veteran's appeal, the RO proposed severance of service connection for the cervical spine disability in a letter dated August 12, 2009. 4. By a December 2010 rating action, the RO severed service connection for cervical spine disability. 5. The evidence of record does not establish that the award of service connection for cervical spine disability was clearly and unmistakably erroneous. 6. Since the January 1, 2006 effective date of service connection, the Veteran's cervical spine disability has been manifested by full range of motion with some pain. CONCLUSIONS OF LAW 1. The severance of the award of service connection for cervical spine disability was improper. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107, 5109A (West 2002); 38 C.F.R. §§ 3.102, 3.105(d) (2012). 2. The criteria for an initial compensable disability rating for cervical spinal disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40. 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify As the Board's decision that the RO's severance of the award of service connection was improper is completely favorable to the Veteran, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations regarding that specific issue. In regard to the Board's consideration of the merits of the claim of entitlement to an initial compensable evaluation for the cervical spine disability, the VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b) (1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b) (1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a March 2006 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the initial claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. Although the Veteran was not notified of the requirements to establish entitlement to an increased rating, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of this information for newly raised or "downstream" issues, such as claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Although the Veteran has also not received notice explaining how a disability rating is determined or the basis for determining an effective date, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006), the Veteran's hearing testimony and written statements reflect her actual knowledge of the requirements for establishing an increased rating. The Board also observes that the May 2009 SOC, as well as supplemental SOCs issued in January 2011 and February 2013, set forth the pertinent criteria for rating the disability (the timing and form of this notice suffices, in part, for Dingess/Hartman). She is therefore not prejudiced by the lack of any such notice. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, private treatment records, and the reports of VA examinations conducted in April 2006 and October 2012. The Board does note that the Veteran testified in January 2012 that she sees a chiropractor, but no chiropractic treatment notes are associated with the record. However, the Veteran was asked in a September 2012 letter to provide VA with authorization to obtain any outstanding records from private health care providers who had treated her and did not respond to the request. As she has not identified any outstanding medical records so that VA can obtain them on her behalf, the Board notes that VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Also of record and considered in connection with the appeal are various statements provided by the Veteran as well as her hearing testimony. The Board finds that no additional RO action to further develop the record in connection with the claim herein decided, prior to appellate consideration, is required. In regard to the two prior VA examinations, the Board finds that the results are adequate to decide the issue as the examinations were predicated on interviews with the Veteran and evaluation of the severity of her disabilities even though the examiners did not expressly indicate review of the entire claims file. There is no indication that the Veteran's cervical spine disability has worsened since the October 2012 examination or that the pertinent evidence of record is insufficient to evaluate her disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c) (4). As noted above, the Board remanded the appeal in August 2012 for additional development. Specifically, the Board directed the AMC/RO to assist the Veteran in obtaining any outstanding private records, to associate additional VA treatment records with the claims file, and to afford her another VA examination. The AMC mailed the Veteran a September 2012 letter requesting that she provide VA with authorization to obtain any outstanding private records on her behalf, additional VA records have been associated with the claims file, and she was afforded a VA examination in October 2012. As the claims file reflects that the RO/AMC took steps to complete the Board's directives, either completing them in full or documenting why full completion - in regard to the Veteran's failure to respond to the September 2012 letter - was not possible, the Board finds that the development directed in the prior remand has been substantially completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that substantial compliance, not absolute compliance, is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of this matter, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Severance of Service Connection The Veteran seeks restoration of service connection for a cervical spine disability. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, a veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the severance of service connection was not proper. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). VA must follow specific regulatory provisions governing severing service connection awards. The provisions of 38 C.F.R. § 3.105 direct, in pertinent part, that service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. Id. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Id. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. Here, the record reflects that the Veteran received timely notice of the proposed reduction in August 2009, of the final rating action in December 2010, and that severance was properly effective beginning March 1, 2011. In order to sever a grant of service connection, the VA must demonstrate not only that that VA has followed the applicable procedural safeguards, but that the grant was clearly and unmistakably erroneous. The evidentiary standard for clear and unmistakable error (CUE) has been analyzed in a number of opinions by the United States Court of Appeals for Veterans Claims (Court). Most of these address the appeals of claimants seeking a finding of CUE in a past denial of benefits. However, the Court has held that the standard is equally applicable to VA where the issue is severance of service connection based on CUE. Once service connection has been granted, section 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof. Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned"). There is a three(3)-part test to determine whether a prior decision is the product of CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); Wilson v. West, 11 Vet. App. 383, 386 (1998). Although the same standards applied in a determination of CUE in a final decision are applied to a determination as to whether a decision granting service connection was the product of CUE for the purpose of severing service connection, 38 C.F.R. § 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. In fact, 38 C.F.R. § 3.105(d) specifically states that "[a] change in diagnosis may be accepted as a basis for severance," clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). The Veteran filed a claim of entitlement to service connection for a back disability and other disabilities in January 2006. Before granting service connection for a cervical spine disability, the RO provided her with a VA examination. The examiner noted that the Veteran denied claiming entitlement to service connection for a neck disability, but diagnosed her with asymptomatic degenerative joint disease of the cervical spine; the examiner did not provide an opinion as to the etiology of the degenerative changes. The RO granted service connection for cervical spine disability in a January 2007 rating decision. The rating decision reflects that the grant was based the Veteran's reported history of neck pain and the VA examination results; the decision states that her service records are silent for any evidence of a chronic neck disability. In October 2007, the Veteran filed an NOD as to the disability rating assigned for her cervical spine disability. She wrote that she agreed her cervical disability was service-related, but contended that it was "much worse than a zero rating." In her June 2009 substantive appeal, she contended that she had experienced cervical pain since 1986. However, in August 2009, the RO notified the Veteran of the proposal to sever service connection for her cervical spine disability. In support of this proposal, the RO noted that she had not contended that she was entitled to service connection, that she did not have "any symptoms or diagnosis in service," and that the April 2006 VA examination report did not reflect a compensable disability. The RO determined that the grant of service connection had been made based on clear and unmistakable error. Initially, the Board notes that the RO did not receive any new evidence, other than the Veteran's lay statements - reflecting her contention that she is entitled to service connection for a cervical spine disability - between granting her service connection and proposing to sever service connection. The RO simply found that there was not sufficient evidence in January 2007 to support the grant of service connection and labeled that rating decision clear and unmistakable error. New evidence was received after the RO issued the December 2010 rating decision severing service connection. Specifically, the Veteran was afforded a hearing before the undersigned Veterans Law Judge in January 2012 and additional VA and private records as well as the report of a were added to the claims file. During the January 2012 hearing, the Veteran testified that she experienced neck pain during and after service. A February 2012 letter from the Veteran's private physician observes her in-service medical history of neck pain after a motor vehicle accident and opines, "with a reasonable degree of medical certainty," that her neck disability is as likely as not due to her in-service experiences. However, an October 2012 VA examiner noted that she was not seen for neck complaints on an ongoing basis during service, assessed her cervical degeneration as consistent with aging and opined it was, as such, unlikely related to her military service. The examiner did not address whether or not the degeneration had begun during her service. The evidence of record reflects that the Veteran was seen multiple time for neck complaints while on active duty: in December 1986, she reported for treatment of neck pain following a motor vehicle accident and was noted to have decreased range of motion secondary to pain; in June 1988 she reported experiencing a "cramp" in her neck every morning upon waking; in February 1990 she was noted to have a spasm in the upper thoracic region of her back and was advised to work on her neck range of motion; in June 1994, she reported pain in the base of her neck as well as her upper back and was diagnosed with myositis of the right upper back; in October 2001, she reported a one week history of right neck pain. The RO's statement in the December 2010 rating action that the Veteran's service record was silent for treatment or diagnosis of a neck disability is plainly incorrect. Further, although the 2010 rating action also states that the Veteran never contended she was entitled to service connection for a neck disability, the record reflects her contention that she has experienced neck pain on an on-going basis since 1986. Although the April 2006 VA examiner diagnosed degenerative joint changes without providing an etiological opinion and the October 2012 VA examiner opined that her degenerative cervical spinal changes were consistent with age, the February 2012 letter from her private physician states that her current neck disability is likely the result of her in-service motor vehicle accident. Hence the evidence of record reflects neck symptoms during service, lay contentions of continued symptoms, a current disability, and a medical opinion linking the current disability to in-service events. The Board cannot find that the grant of service connection for a cervical spine disability constituted CUE. As noted above, to uphold a finding of CUE, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Damrel, 6 Vet. App. at 245. Here, the rating decisions issued by the RO clearly reflect that the "error" was the interpretation of the service treatment records and the 2006 VA examination report. The author of the 2007 rating decision (granting service connection) evidently found that the evidence - consisting of service treatment records showing remote complaints of neck pain and the diagnosis of degenerative cervical changes by the 2006 VA examiner - was at least in equipoise and granted service connection by resolving reasonable doubt in the Veteran's favor. The author of the 2010 rating decision (severing service connection) found that the 2006 VA examination report did not provide evidence of any relationship between the degenerative changes and that the Veteran's service record was silent "for any complaints of cervical condition while in service," and, as such, the 2007 rating decision was CUE. As noted above, the Veteran's service record actually does reflect that she sought treatment for cervical complaints on multiple occasions and even, in June 1988, reported daily neck cramps. Further, the April 2006 VA examination, observing degenerative (implying occurrence over a period of time) changes, was conducted less than a year after the Veteran's discharge from active duty service. Neither the 2006 VA examiner nor the 2012 VA examiner address whether those changes began during service. Further, the February 2012 private physician opinion -linking the current neck disability to the in-service motor vehicle accident- reflects that the etiology of the Veteran's cervical spine degeneration is debatable and, as such, not a ground for a determination of CUE. Therefore, the Board finds that the alleged error was not "undebatable" and, as such, there was no clear and unmistakable error made in granting service connection. The severance of the award of service connection for cervical spinal disability was improper. To that extent, the Veteran's appeal is granted. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the award of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As noted, the Veteran was assigned an initial non-compensable disability rating for her cervical spine disability. However, she has contended that she is entitled to a higher evaluation due to pain and painful motion. In June 2009, she specifically observed that, under older rating criteria in effect in 2002, moderate limitation of motion of the cervical spine warranted a 20 percent rating under Code 5290. Despite the Veteran's contention as to the rating she would be entitled to under the criteria in effect in 2002, the Board notes that the Schedule for Rating Disabilities of the Spine has since changed, effective September 26, 2003. As the Veteran filed her claim of entitlement to service connection in January 2006, she is not entitled to the application of the older criteria. Only when a law or regulation changes after (italics added for emphasis) a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, will the version more favorable to the Veteran apple, absent congressional or Secretarial intent to the contrary. VAOPGCPREC 3-2000. As such, the Board may only apply the current rating criteria in adjudicating the Veteran's claim for an increased rating. Under the current rating criteria, the General Rating Formula for Diseases and Injuries of the Spine is set forth as follows: 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003) 5243 Intervertebral disc syndrome For diagnostic codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: * A 10 percent where the Veteran has forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. * A 20 percent where the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is 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 where the Veteran has forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. * A 40 percent where the Veteran has unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. * A 50 percent where the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. * A 100 percent where the Veteran has unfavorable ankylosis of the entire spine. Pursuant to Note 1, any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Neurological conditions are rated under 38 C.F.R. § 4.124a. Pursuant to Note 6, disability of the thoracolumbar and cervical spine segments is to be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. For Intervertebral Disc Syndrome, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires (1) bed rest prescribed by a physician, and (2) treatment by a physician. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating applies where the Veteran has incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. A 20 percent disability rating applies where the Veteran has incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent disability rating applies where the Veteran has incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent disability rating applies where the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Veteran's current zero percent rating is assigned under Diagnostic Code 5003, the Code applicable to disabilities resulting from degenerative arthritis. As noted above, Code 5242 for degenerative arthritis of the spine directs the rater to Code 5003. Under Code 5003, degenerative arthritis established by x-ray findings is to be rated on limitation of motion. However, when limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed. For cases where no limitation is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, a 10 percent evaluation is only warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The cervical spine is considered a group of minor joints ratable on parity with major joints. 38 C.F.R. § 4.45. Evidence relevant to the severity of the Veteran's cervical spinal disability includes April 2006 and October 2012 VA Spine Examination Reports as well as the Veteran's lay statements. Upon physical examination in April 2006, the examiner observed no current symptoms of neck disability, but noted that x-ray revealed degenerative changes. Specifically x-ray showed mild disc space narrowing with anterior hypertrophic change at C5-6 without misalignment, fracture, or neuroforaminal narrowing. In October 2007, the Veteran contended that she experienced cervical pain warranting more than a zero percent rating. Although, she wrote in June 2009 that cervical pain limited her ability to perform her work and daily tasks and required use of pain medication as prescribed by a private physician, the wording of her statement reflects that she was reporting the effects of disability of her entire spine. Similarly, at the January 2012 hearing, she testified that her "back and neck" were bothering her. The October 2012 VA examination reflects that the Veteran had been diagnosed with degenerative changes of the cervical spine. The examiner noted that she contended that she began to experience neck pain after an in-service motor vehicle accident. She was noted not to experience any flare-ups and her flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were all measured as normal without any objective evidence of painful motion. The examiner observed that the Veteran was able to perform repetitive use testing with no decrease in range of motion. Although observing the Veteran's complaints of pain, the 2012 examiner noted no functional loss associated with the neck disability - there was no tenderness to palpation and no guarding or muscle spasm. The reflex and sensory portions of the examination were normal and the examiner noted no symptoms of radiculopathy and no evidence of any other associated neurologic abnormalities. The examiner specifically noted that the Veteran did not have intervertebral disc syndrome of the cervical spine. X-rays revealed moderate loss of disc space height at C5-6, minimal disc space narrowing at C4-5 and C6-7, and mild facet arthrosis with minimal right-sided foraminal encroachment at C3-5. The examiner noted that spinal disability interfered with her ability to work, but referred to the results of a concurrent back examination - the back examination report reveals that spinal pain bothers her if she sits for a long period of time and the Veteran reported that her back (rather than neck) prevented her from bending too much or carrying heavy objects. Based on the evidence of record, the Board finds that a compensable rating is not for application. In the present case, there is no evidence of limitation of motion objectively confirmed by any clinical findings. The Board notes that the Veteran has reported experiencing neck pain, but, again, there is no clinical evidence of limitation of motion. Without any such evidence of limitation, a compensable (10 percent) evaluation is only warranted under Code 5003 with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. As noted, the cervical spine is considered a group of minor joints ratable on parity with major joints. 38 C.F.R. § 4.45. As the cervical spine can only be considered as a single major joint or as a single group of minor joints, a 10 percent evaluation is not for application. The Board acknowledges that the Veteran is also in receipt of a 10 percent disability rating for her now service-connected degenerative arthritis of the back based on limitation of motion, but a note to Code 5003 specifically prohibits assigning a rating under Code 5003 in combination with a rating based on limitation of motion. Further, the Board could not assign the Veteran a higher (20 percent) combined rating for both her back and cervical degeneration under Code 5003 without evidence of "occasional incapacitating exacerbation." 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Although the Veteran was seen at a hospital in February 2004 for back pain, there is no evidence that, during the appellate period, a physician determined that she was incapacitated due to her spinal disabilities. Further, the October 2012 back and neck examination reports constitute competent medical evidence that there have been no such incapacitating exacerbations. In regard to other potentially relevant rating criteria, the Board notes that the criteria for intervertebral disc syndrome are not for application here because the 2012 examination report plainly states that she does not have intervertebral disc syndrome. However, the Board notes that, regardless of applicability, in order to warrant a compensable (10 percent) evaluation under those criteria, the evidence would need to show that she had incapacitating episodes (including bed rest prescribed by a physician as well as treatment by a physician) having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months - there is no such evidence associated with the claims file. Under the General Rating Formula for Diseases and Injuries of the Spine, a compensable (10 percent) evaluation is not warranted unless forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees or combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour or there is vertebral body fracture with loss of 50 percent or more of the height. Here, the record does not reflect any such clinical findings or limitation of motion. [Parenthetically, the Board notes that the lack of any such findings/limitation also means that she would not be entitled to a compensable evaluation under the older, 2002, rating criteria, which were based on limitation of motion.] Although a note to the rating schedule directs that any associated neurologic abnormalities are to be separately evaluated, there is also no evidence of any such abnormality. Specifically, the 2012 examination reflects normal sensory and reflex activity with no findings to support a diagnosis of radiculopathy or other neurologic abnormality. That finding is supported by the normal results of a nerve conduction study conducted in July 2009 by the Veteran's private physician. In evaluating the Veteran's claim, the Board has also considered whether a higher disability rating is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, although the Veteran has complained of some pain, there is no clinical or objective evidence of painful motion. Further, the Veteran's complaints of spinal pain causing her to limit her motion/activity refer to her entire spine, rather than just the cervical spine and she is already compensated for loss of motion due to thoracolumbar limitations. The rating schedule directs that disabilities of the thoracolumbar and cervical portions of the spine are to be evaluated separately unless there is unfavorable ankylosis of both portions and here there is no such ankylosis. 38 C.F.R. § 4.71a. The Board has considered whether staged ratings under Fenderson are appropriate, but finds that her symptomatology has been stable throughout the appeal period. Therefore, staged ratings for the cervical spine disability are not warranted. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this appeal has the disability under consideration been shown to be so exceptional or unusual to warrant the assignment of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b) (1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B (5) (c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned ratings are therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b) (1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular rating criteria are adequate to rate the disabilities under consideration. The General Rating Formula for Diseases and Injuries of the Spine contemplates the symptoms experienced by the Veteran and more symptoms. Specifically, the rating formula provides ratings for limitation of motion, with or without findings of arthritis and with or without pain, stiffness, and aching. Here the Veteran has reported pain, but she does not have any limitation of motion - her symptomatology is accounted for by the rating criteria. Here, the rating schedule more than fully contemplates the symptomatology described by the Veteran and provides for ratings higher than that assigned for more significant impairment. A comparison between the symptomatology of the claimant's disability with the established criteria provided in the rating schedule reveals that her disability picture is adequately addressed by the rating schedule. As such, the assigned rating is are adequate and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96; Thun, 22 Vet. App. 111. The Board also notes that, in certain circumstances, a claim for total disability rating based on individual unemployability due to service-connected disability (TDIU) may be considered a component of a claim for higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A TDIU may be granted where a Veteran's service connected disability(ies) is/are rated less than total, but they prevent him or her from obtaining or maintaining all gainful employment for which he or she is qualified by education and occupational experience. 38 C.F.R. § 4.16 (2012). However, as the Veteran has not presented any evidence of unemployment or contended that her neck disability renders her unemployable, the Board finds that no TDIU claim, pursuant to Rice and Roberson, has been raised in connection with the claims for higher rating currently on appeal. [Continued on next page.] ORDER Severance of service connection for cervical spine disability was improper, and, accordingly, service connection is restored; the appeal is to this extent granted. An initial compensable disability rating for cervical spine disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs