Citation Nr: 1315500	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  06-17 924	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia


THE ISSUES

1.  Entitlement to higher initial ratings cervical spine disability: 20 percent for orthopedic manifestation; and 10 percent, each, for numbness of the right and left lower upper extremity as neurological manifestations. 

2.  Entitlement to higher initial and subsequent ratings for lumbar spine disability: 10 percent for orthopedic manifestations, prior to November 12, 2008; 20 percent for orthopedic manifestations, from November 12, 2008; and 10 percent, each, for numbness of the right and left lower extremities as neurological manifestations. 

3.  Entitlement to an initial rating in excess of 10 percent for residuals of excisions of basal cell carcinoma. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from May 1975 to August 2004. 

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2004 rating decision in which the RO in Washington, DC, inter alia, granted service connection for sleep apnea (rated as 30 percent disabling), for herniated disc with shoulder and neck pain (rated as 10 percent disabling), for disc bulge of the low back (rated as 10 percent disabling), for seborrheic dermatitis ( rated as 10 percent disabling), for basal cell carcinoma (rated as noncompensable), and for adhesive capsulitis of the right shoulder (rated as noncompensable).  All of awards of service connection were made effective September 1, 2004.  The September 2004 rating decision also denied service connection for bilateral foot problems.  In October 2004, the Veteran filed a notice of disagreement (NOD) with the denial of service connection for foot problems.  In November 2004, the Veteran filed an NOD with the initial ratings assigned for his service-connected sleep apnea, cervical spine disability, low back disability, seborrheic dermatitis, basal cell carcinoma, and right shoulder disability.

During the course of the appeal, the Veteran's claims file was transferred to the RO in Roanoke, Virginia (which now has jurisdiction over the appeal).  In an April 2005 rating decision, the Roanoke RO granted a 50 percent rating for sleep apnea, effective November 14, 2004. 

A statement of the case (SOC) regarding the claims for higher initial ratings for the Veteran's cervical spine disability, lumbar spine disability, basal cell carcinoma, seborrheic dermatitis, and the right shoulder condition, and the claim for service connection for bilateral plantar fasciitis was issued in April 2005, however, the notice letter accompanying the April 2005 SOC informed the Veteran that the SOC was not the Decision Review Officer's (DRO's) final review, but that, rather, an examination was being scheduled and, once the additional development was complete, all of the evidence of record would be reviewed by the DRO.  The letter informed the Veteran that, because the DRO would make another decision, he did not have to file his substantive appeal, but would have 60 days after the DRO's decision was made, or the remainder, if any, of the one-year period from the date of notice of the September 2004 rating decision, whichever period was greater. 

In a September 2005 rating decision, the RO, inter alia, granted service connection and assigned an initial 10 percent rating, for numbness in the right and left upper extremities, and for numbness in the right and left lower extremities, each as secondary to the service-connected disability of disc bulge, lumbar spine.  All of the awards of service connection were also made effective September 1, 2004.  Because the rating schedule authorizes separate ratings for orthopedic and neurological manifestations of disabilities of the spine, and the RO has granted such separate ratings for neurological manifestations during the pendency of the appeal, the Board has recharacterized the appeal as to the cervical spine and lumbar spine encompassing consideration of those matters, as well (as reflected on the title page). 

In a March 2006 rating decision, the RO granted higher initial ratings of 60 percent for seborrheic dermatitis, 20 percent for herniated disc of the cervical spine, 10 percent for right shoulder arthritis; as well as granted service connection for bilateral plantar fasciitis (representing a full grant of the benefits sought with respect to that disability).  In the March 2006 rating decision, the RO indicated that it considered the grant of an initial 60 percent rating for seborrheic dermatitis a full grant of the benefit sought on appeal because it was the highest rating available under the assigned diagnostic code.  See 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806 (2009).  The Board notes that, in communications from the Veteran and his representative since the March 2006 rating decision, there has been no challenge to the assignment of the 60 percent rating for seborrheic dermatitis, thus indicating that the Veteran was not seeking an even higher rating, either pursuant to a different diagnostic code or on an extra-schedular basis.  See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). 

Also in March 2006, the RO issued a supplemental SOC (SSOC), addressing the claims for higher initial ratings remaining on appeal.  A March 2006 deferred rating decision indicates that the March 2006 SSOC is actually a final DRO SOC, because no final DRO decision had been issued previously.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2006. 

In a May 2006 rating decision, the RO granted a 50 percent rating for sleep apnea from September 1, 2004, the date of the grant of service connection.  The Board notes that, in his November 2004 NOD, the Veteran limited his claim to entitlement to an initial 50 percent rating for sleep apnea.  A.B., 6 Vet. App. at 39.  Thus, the initial rating of 50 percent established in the May 2006 rating decision constitutes a full grant of that claim. 

In a June 2008 decision, the Board denied the claim for an initial rating in excess of 10 percent for right shoulder arthritis.  The Board also remanded the claims remaining on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further development.  After partially completing the requested development, the AMC granted an initial rating of 10 percent for excisions of basal cell carcinoma, and a higher rating of 20 percent for disc bulge, lumbar spine, effective November 12, 2008; but continued to deny any higher rating associated with the with the cervical spine (as reflected in an April 2009 supplemental SOC (SSOC)) and returned these matters to the Board for further consideration. 

In July 2010, the Board again remanded the matters on appeal to the RO, via the AMC in part due to failure to comply with the Board's prior remand directives.  After completing the requested development, the AMC continued to deny higher initial ratings (as reflected in a May 2012 SSOC) and returned the matters on appeal to the Board for further consideration.

In June 2011, the Veteran appointed the Disabled American Veterans as his accredited representative via a properly completed VA Form 21-22.  The Board recognizes the change in representation.

Because the appeal involves disagreement with the initial ratings assigned following the grants of service connection, the Board has characterized the appeal in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).  Moreover, although higher ratings have been assigned for a herniated disc of the cervical spine, lumbar spine disability, and excisions of basal cell carcinomas, because higher ratings are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims for higher ratings for these disabilities remain viable on appeal.  Id.; see also A.B., 6 Vet. App. at 38. 

A review of the Virtual VA electronic records storage system does not reveal any additional, relevant records which are not associated with the paper claims file.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished.

2.  Since the September 1, 2004 effective date of the award of service connection, the orthopedic manifestation of cervical spine disability and associated intervertebral disc syndrome (IVDS) has been forward flexion greater than 15 degrees, without ankylosis of the cervical spine, even when considering functional impairment on repeated use or during flare-ups.

3.  Since the September 1, 2004 effective date of the award of service connection, the neurological manifestations of cervical spine disability and associated IVDS have consisted of no more than a mild sensory, reflex and motor impairment of both upper extremities.

4.  For the period from September 1, 2004 to November 12, 2008, the orthopedic manifestation of lumbar spine disability with associated IVDS was manifested by forward flexion to 70 degrees with a combined range of motion of 170 degrees, even when considering functional impairment, without ankylosis or abnormal spinal contour.

5.  Since November 12, 2008, the orthopedic manifestation of lumbar spine disability with associated IVDS has been forward flexion greater than 30 degrees, without ankylosis of the cervical spine, even when considering functional impairment on repeated use or during flare-ups.

6.  Since the September 1, 2004 effective date of the award of service connection, the Veteran has consistently manifested no more than mild sensory loss with reflex abnormalities, and there have been inconsistent findings for any motor dysfunction of the lower extremities; collectively, these manifestations have resulted in no more than mild incomplete paralysis of the sciatic nerve.

7.  At no point since September 1, 2004 have there been any incapacitating episodes of cervical or thoracolumbar spine IVDS.

8.  The basal cell excision scars on the cheeks, the left ear, vertex of the scalp, left forearm, right shoulder, right eye brow and left neck do not result in visible scarring with more than one characteristic of disfigurement, or scarring resulting in limitation of motion, involving an area of 144 inches (929 cm.), instability, pain on examination, or limitation of function of any part affected.

9.  The schedular criteria are adequate rate each disability under consideration at all pertinent points.


CONCLUSIONS OF LAW

1.  The criteria for higher initial ratings cervical spine disability-20 percent for orthopedic manifestation; and 10 percent, each, for numbness of the right and left lower upper extremity as neurological manifestations-are not met.   38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating IVDS (2012).

2.  The criteria for higher initial and subsequent ratings for lumbar spine disability-10 percent for orthopedic manifestations, prior to November 12, 2008, 20 percent for orthopedic manifestations from November 12, 2008, and 10 percent, each, for numbness of the right and left lower extremities as neurological manifestations-are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating IVDS (2012).

3.  The criteria for an initial rating in excess of 10 percent for residuals of excisions of basal cell carcinoma are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7800, 7801, 7802, 7803, 7804, 7805, 7818 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

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 has 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.

A pre-adjudicatory February 2004 VCAA letter explained the evidence necessary to substantiate the claim for service connection for a back condition, a neck condition and basal cell carcinoma.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

A post-adjudicatory RO letter dated in July 2008 provided fully compliant VCAA notice by notifying the Veteran of the types of evidence deemed necessary to substantiate his initial rating claims, the relative duties upon himself and VA in developing the claims, and the criteria for establishing a disability rating and effective date of award.

This appeal arose from original awards of service connection, so that the claims were not only substantiated, they were proven.  Thus, the purpose of VCAA notice, originally provided to the Veteran in February 2004, had been fulfilled.  Thus no further VCAA notice was required with respect to the claims.  The current appeal arises from NOD's with the assignment of the initial ratings, and does not give rise to a further duty to notify under the VCAA.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of an NOD).  Nonetheless, the RO has provided additional notice to ensure that no prejudicial error has occurred.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  The Board remanded this claim in July 2010, in part, to associate outstanding VA clinic records which appeared to have been referenced in the record.  The Board noted that a June 2005 VA examination report reflects the Veteran's reference to receiving treatment by a pain management clinic and, in an August 2006 statement, the Veteran's representative asserted that VA clinic records were available.  The Board also interpreted dermatologic treatment records dated in December 2004, June 2005 and August 2006 as reflecting treatment at DiLorenzo TRICARE Health Clinic, Bethesda Naval Medical Center (NMC) and the Washington VA Medical Center (VAMC).

On remand, the RO obtained the Veteran's post-service treatment records from Walter Reed National Military Medical Center (WRNMMC).  There is no showing that these records are incomplete.  In May 2012, the Veteran informed the RO that all of his treatment occurred at WRNMMC, and he denied any other relevant treatment records.  Clearly, the Veteran is the only party responsible for identifying his relevant treatment records and, based on his assertions, the Board finds that there is no further duty to obtain any outstanding private or VA treatment records.  See generally Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (claimant has a duty to cooperate in the development of a claim, including providing any factual data required such as names, dates and places).

The Veteran reports being "retired."  There is no information of record suggesting that he has applied for disability benefits with the Social Security Administration (SSA).  Therefore, the Board finds that it is not necessary to request records from SSA.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that "there must be specific reason to believe [SSA] records may give rise to pertinent information to conclude that they are relevant").  In summary, the Veteran has not identified any additional, outstanding records necessary to decide his claims on appeal. 

The Veteran has also been offered VA examinations in June 2005 (general medical), November 2008 (skin and orthopedic), February 2009 (neurologic), March 2009 (skin), and April 2012 (neurologic and orthopedic).  Cumulatively, these examination reports provide all findings necessary to decide these claims.  

Notably, in July 2010, the Board returned the November 2008 VA orthopedic examination report to the RO as being inadequate for rating purposes.  This examination was returned for the specific purpose of addressing the existence and frequency of incapacitating episodes of cervical and/or lumbar spine IVDS, if any.  The April 2012 VA orthopedic examination report cured that evidentiary defect.  This examiner was not requested or required to address the extent of functional impairment of the cervical and/or lumbar spine on use, as this issue was adequately addressed in the November 2008 orthopedic examination report.  

The Board further notes that the April 2012 VA examiner described the Veteran's forward flexion of the cervical spine as being able to touch the chin to chest, rather than providing a specific degree forward flexion motion.  This examination defect is harmless as chin to chest forward flexion undoubtedly represents forward flexion greater than 15 degree.  Additionally, this examiner reported that there had been no significant change in the Veteran's symptomatology during the appeal period which serves to verify the findings from prior examination reports.

In July 2010, the Board also returned the February 2009 VA neurology examination report to the RO as inadequate for rating purposes.  Specifically, the Board required an opinion as the severity of the overall symptomatology for all extremities.  The April 2012 VA neurology examination report cured that evidentiary defect.  

Since the last examinations were conducted in March 2009 for the scar disability, and in April 2012 for the orthopedic and neurologic manifestations of cervical and lumbar spine disabilities, the Board does not find that the lay or medical evidence suggests an increased severity of symptoms involving any of the disabilities at issue to the extent that higher schedular ratings may be possible.  Additionally, the VA examination reports are supplemented by findings in the clinical setting and the Veteran's report of symptomatology and functional limitations.  Thus, there is no duty to provide further medical examination on these claims.  See VAOPGCPREC 11-95 (Apr. 7, 1995).

The Board notes that, in the June 2008 remand, the Board instructed the RO/AMC to provide a VCAA notice, to arrange for neurologic and orthopedic examinations, and readjudicate the claims.  In response, the RO provided the Veteran VCAA notice, obtained neurological and orthopedic examination reports, and to readjudicate the claims. 

In July 2010, the Board remanded the claims again, instructing the RO to 1) send the Veteran a VCAA notice, 2) assist the Veteran in associating with the claims folder records from DiLorenzo TRICARE Health Clinic, Bethesda NMC and the Washington VAMC, 3) obtain a neurology examination report which specifically addressed an opinion as the severity of the overall symptomatology for all extremities, 4) obtain an orthopedic examination which specifically addressed the existence and frequency of incapacitating episodes of cervical and/or lumbar spine IVDS, and 5) readjudicate the claims.

In response, the RO sent the Veteran a VCAA notice in July 2010, discussed with the Veteran in May 2012 whether any additional records existed other than WRNMMC, obtained orthopedic and neurology examination reports which complied with the terms of the July 2010 remand instructions, and readjudicated the claims.

In light of the above, the Board finds that the RO has complied with the remand instructions to the extent possible, and no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).

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 claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself 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 claims.  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 any of the matters herein decided, at this juncture.  See Mayfield, 20 Vet. App. at 543 (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  Applicable Legal Authority

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings 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.

The 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).  A claim such as this one, placed in appellate status by disagreement with the initial rating awards and not yet ultimately resolved, is an original claim as opposed to a new claim for increase.  Fenderson, 12 Vet. App. 119 (1999).  In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Id.  

As regards the claims involving cervical spine disability and residuals of excisions of basal cell carcinoma, each analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  As regards the claim involving lumbar spine disability, the RO has already assigned  staged ratings for neurological and orthopedic manifestations; hence, the  Board must consider the propriety of the rating at each stage, as well as whether any further staged rating is warranted. 

The Veteran has been assigned a 20 percent rating for orthopedic manifestation of cervical spine disability under DC 5243.  The Veteran has also been assigned separate 10 percent ratings for the neurological manifestations of cervical spine disability-specifically, numbness of the right and left lower upper extremities under DC 8599-8515, which represents an unlisted neurologic disability evaluated by analogy to paralysis of the median nerve.  See 38 C.F.R. § 4.124a, DC 8515.  See generally 38 C.F.R. §§ 4.20, 4.27 (providing that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99").

The Veteran has been assigned a 10 percent rating for the orthopedic manifestation of the lumbar spine disability prior to November 12, 2008, and a 20 percent rating thereafter, under DC 5243.  The Veteran has also been assigned separate 10 percent ratings for the neurologic manifestations of lumbar spine disability involving numbness of the right and left lower extremities under DC 8599-8520, which represents an unlisted neurologic disability evaluated by analogy to paralysis of the sciatic nerve.  See 38 C.F.R. § 4.124a, DC 8520.

Finally, the Veteran has been assigned a 10 percent rating for residuals of excisions of basal cell carcinoma under DC 7818-7800, which represents an unlisted skin disability evaluated by analogy to disfigurement to the head, neck and face.  38 C.F.R. § 4.118, DC 7800.

The actual criteria for rating disabilities of the spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a.  That formula provides for assignment of a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  

A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  

A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  

A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.

The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine.  Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code.  

Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  See also Plate V, 38 C.F.R. § 4.71a.  

Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  

Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees.  

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the  following: difficulty walking because of a limited line of  vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal  margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  

Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

VA also has criteria for rating IVDS of the thoracolumbar spine.  IVDS (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, DC 5243.  These criteria specify that any associated neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be separately rated under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).

According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating contemplates incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months.  A 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note 1.

The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

Notably, pain, alone, does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

The assignment of a particular DC is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123.  The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis.  38 C.F.R. § 4.124.

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.  The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor.  Id. 

DC 8515 provides the rating criteria for paralysis of the median nerve, and therefore neuritis and neuralgia of that nerve.  38 C.F.R. § 4.124a, DC 8520.  Complete paralysis of the median nerve, which is rated as 70 percent disabling for the major extremity and 60 percent for the minor extremity, contemplates the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of left thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. 

For the major extremity, a 10 percent rating is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis, and a higher 50 percent evaluation is warranted for severe incomplete paralysis.  For the minor extremity, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a higher 40 percent evaluation is warranted for severe incomplete paralysis of the major median nerve.  

DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, DC 8520.  Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  Id.  Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively.  Id.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  Id.  DC 8620 refers to neuritis of the sciatic nerve while DC 8720 refers to neuralgia of the sciatic nerve.

The words "slight," "moderate" and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions."  38 C.F.R. § 4.6.

With respect to the scar disability, the Board notes that the criteria for rating scars were revised during the pendency of this appeal, effective October 23, 2008.  The revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received.  See 73 Fed. Reg. 54708 (Sept. 23, 2008); see also 77 Fed. Reg. 2909 (Jan. 12, 2012) (correcting the applicability-date language for the revised rating criteria for scars). 

As the Veteran's claim for service connection was filed prior to the effective date of the revised criteria, and the Veteran has not specifically requested consideration of his claim under the October 23, 2008, revised criteria, those criteria are not for application.  Thus, all diagnostic codes discussed herein are the versions in effect prior to October 23, 2008. 

Malignant skin neoplasms (other than malignant melanoma) are evaluated under DC 7818, which instructs that that malignant neoplasms are to be rated as disfigurement of the head, face or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment of function.  38 C.F.R. § 4.118, DC 7818 (prior to October 23, 2008).

DC 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated as 10 percent disabling.  Note (1) to DC 7800 provides that, for purposes of rating under 38 C.F.R. § 4.118, the 8 characteristics of disfigurement are:

* Scar is 5 or more inches (13 or more cm.) in length;
* Scar is at least one-quarter inch (0.6 cm.) wide at the widest part;
* Surface contour of scar is elevated or depressed on palpation;
* Scar is adherent to underlying tissue;
* Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.);
* Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.);
* Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and
* Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.)

38 C.F.R. § 4.118, DC 7800 (prior to October 23, 2008).

Under DC 7800, a 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ear (auricles), cheeks (lips), or; with two or three characteristics of disfigurement.

A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ear (auricles), cheeks (lips), or; with four or five characteristics of disfigurement.

An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ear (auricles), cheeks (lips), or; with six or more characteristics of disfigurement.

Under DC 7801, scars, other than of the head, face, or neck, that are deep or cause limited motion in an area or areas exceeding six square inches (39 sq. cm.) warrant a 10 percent rating.  38 C.F.R. § 4.118, DC 7801 (prior to October 23, 2008).  Similar scars in an area or areas exceeding 12 square inches (77 sq. cm.) warrant a 20 percent rating.  Id.  Similar scars in an area or areas exceeding 72 square inches (465 sq. cm.) warrant a 30 percent rating.  Id.  A deep scar is one associated with underlying soft tissue damage.  Id. at Note (2).  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25.  Id. at Note (1). 

Under DC 7802, scars, other than of the head, face, or neck, that are superficial and that do not cause limited motion and have an area or areas of 144 square inches (929 sq. cm.) or greater, warrant a 10 percent rating.  38 C.F.R. § 4.118, DC 7802 (prior to October 23, 2008).

DC 7803 provides a 10 percent rating for superficial scars that are unstable.  38 C.F.R. § 4.118, DC 7803 (prior to October 23, 2008).  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Note (1).  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (2).

DC 7804 provides a 10 percent rating for superficial scars that are painful on examination.  38 C.F.R. § 4.118, DC 7804 (prior to October 23, 2008).  As above, a superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (1). 

DC 7805 is for evaluation of scars based on limitation of function of the affected part.  38 C.F.R. § 4.118, DC 7805 (prior to October 23, 2008).

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  The-benefit-of-the-doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.


III.  Factual Summary

Historically, the Veteran received in service treatment for right C5-C6 herniated nucleus pulposus with right upper extremity radiculopathy.  A magnetic resonance imaging (MRI) scan in January 2004 also demonstrated a mild broad-based disc bulge at the C3-C4 level, mild right paracentral disc bulge at the C4-C5 level, degenerative changes at the endplates of C5-C6 with mild signal abnormalities consistent with myelopathy, and moderate broad-based disc bulge at the C6-C7 level.  The Veteran eventually underwent surgical fusion of C5-C6 and C6-C7.  He also received in service treatment for lumbar spine pain.  An October 2003 MRI examination was interpreted as showing minimal disk bulge at L5-S1 with facet hypertrophy at L3-L4 and L5-S1.

The Veteran also reportedly underwent multiple excisions of basal cell carcinoma.  The STRs documents basal cell carcinoma excisions at the right medial cheek in May 2002, and the vertex of the scalp in May 2004.

On his August 2004 retirement examination, the Veteran reported lumbar spine pain of 6-9/10 severity treated in the pain clinic with nerve blocks.  He held a P3 profile of his upper extremities as well as a diagnosis of superficial, multi-focal basal cell carcinoma. 

A September 2004 RO rating decision, inter alia, granted service connection for herniated disc with shoulder and neck pain, and assigned an initial 10 percent rating under DC 5003-5243, granted service connection for disc bulge of the lower back and assigned an initial 10 percent rating under DC 5243, and granted service connection for basal cell carcinoma and assigned an initial noncompensable rating under DC 7818.  This appeal ensues from the initial ratings assigned by the RO.

In a statement received in November 2004, the Veteran reported constant neck pain with limitation of motion as well as pain, tingling, limited motion and loss of strength of both arms.  He described low back pain and limitation of motion which considerably impacted his life-style as well as tingling and numbness of the feet.  Furthermore, the Veteran described numerous and frequent episodes of basal cell carcinomas resulting in multiple scars in exposed areas.

On VA Compensation and Pension (C&P) examination in June 2005, the Veteran described cervical spine pain that traveled and was aching in nature.  He reported limitation of motion of the neck with numbness.  He could function without medication, and had not lost any time from work.  He reported a history of bilateral shoulder pain which began in service.  His right shoulder was manifested by severe pain which caused functional impairment of limited range of motion and decreased arm strength.  His left shoulder caused severe pain with restricted range of shoulder motion and weakness.  The Veteran also described mid-back pain of 3/10 severity which was cramping and sharp in nature, and exacerbated with physical activity.  He had constant pain when in the wrong position with limitation of motion.  He was being treated by pain management.  Furthermore, the Veteran described having undergone at least 8 different surgical procedures for basal cell carcinoma on the face, arms and chest.  He was restricted from being exposed to the sun for long periods of time.

On examination, the Veteran's cervical spine demonstrated restricted range of motion with flexion to 30 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 60 degrees bilaterally.  There was no ankylosis.  The examiner also found no "De Luca" issue with pain, fatigue, weakness, lack of endurance or incoordination.  The examiner found neurologic involvement of the C6-C7 distribution affecting the lateral forearm as well as the index and lateral long fingers.  The biceps and triceps were +1/4, there was involvement of the radial wrist extensors in elbow extension, and motor weakness bilaterally.  There was also a sensory deficiency.  Motor strength was otherwise described as 5/5 of the upper extremities.  The examiner diagnosed cervical spine IVDS with numbness and tingling on the right side of body, especially the "lower and upper leg," with decreased nerve findings.

The Veteran's thoracolumbar spine was negative for tenderness, muscle spasm, and straight leg raise test.  There was range of motion to 70 degrees of flexion, 20 degrees of extension, 20 degrees of lateral flexion bilaterally, and 20 degrees of rotation bilaterally.  There was no ankylosis.  The examiner also found no "De Luca" issue with pain, fatigue, weakness, lack of endurance or incoordination.  The examiner found neurologic involvement of the L5-S1 distribution affecting the lateral leg, dorsal foot, lateral foot, great toe and hip abduction.  There was a sensory deficiency as well as 3 to 5 motor weakness.  The Veteran did not have any bowel or bladder dysfunction.  There were conflicting findings as to whether the Veteran had erectile dysfunction.  The examiner diagnosed lumbar spine IVDS with numbness and tingling in both legs, tenderness in the hips and legs, and decreased motor function.

The Veteran had a very complicated skin examination.  He demonstrated seborrheic dermatitis covering over 75 percent of body surface as well as 75 percent of exposed areas.  However, with respect to basal cell carcinoma excisions, the examiner only described multiple left forearm scars with the largest scar measuring 3 x 5 centimeters which was hypopigmented.  Unretouched photographs of the face, neck, scalp and both forearms were taken and are associated with the claims folder.

The VA examiner also diagnosed separate disabilities of left shoulder capsulitis with pain on movement and restricted range of motion, and degenerative changes of the right shoulder with restricted range of motion.

In pertinent part, a September 2005 RO rating decision, inter alia, granted service connection for numbness of the right and left upper extremities and assigned separate 10 percent ratings under DC 8599-8515, granted service connection for numbness of the right and left lower extremities and assigned separate 10 percent ratings under DC 8599-8520, and granted service connection for left shoulder capsulitis and assigned a 10 percent rating under DC 5024.  The RO also granted service connection for impotence associated with service-connected status post left radical orchiectomy and assigned a noncompensable rating under DC 7599-7522 with an award of special monthly compensation for loss of use of a creative organ under 38 U.S.C.A. § 1114(k).

Thereafter, the Veteran's treatment records include a March 2006 evaluation for neck pain that radiated into both shoulders and the arms.  He also reported continued low back pain.  The Veteran was noted to have good coordination with no sensory disturbances.  There were no abnormalities of the fingers, hands, wrists, elbows, hips, knees, ankles or feet.  The cervical spine was significant for pain radiating to both arms, greater on the right.  The Veteran reported low back pain with intermittent twinges of shooting pain, but no sciatica with straight leg lifts.  There were no paravertebral spasms with palpations.  Neurologic examination reported normal findings for motor, balance, gait, stance and reflexes.

Later that month, an MRI examination of the cervical spine was interpreted as showing post-operative findings without evident complication, and mild bony neuroforaminal narrowing on the left at C5-C6 and C6-C7 as well as ossification of the styloid ligaments, which could be either an incidental finding or associated with pain (Eagle Syndrome).  An MRI examination of the thoracic spine was interpreted as showing minor degenerative changes from T9-T12.  An MRI examination of the lumbar spine was interpreted as showing mild disc bulges at L3-L4 and L4-L5 with flattening of the anterior thecal sac at the L4-L5 level.

An April 2006 treatment record included the Veteran's complaint of disfiguring large white scars on his right shoulder, right eye brow and scalp.  The examiner described large erythematous scars on the anterior neck and shoulders associated with prior basal cell carcinoma excisions with palpable strictures and two scars that were at least one quarter wide.  The right shoulder had 2 obvious white depressed scars measuring 1.5 cm in greatest diameter for each.  The Veteran also had a suspicious lesion developing again on his right temporal region.

Another April 2006 treatment record evaluated the Veteran's cervical spine motion with use of an inclinometer for all ranges of motion except for rotation, wherein a goniometer was used.  The Veteran's cervical spine averaged passive flexion to 31 degrees, extension to 28 degrees, left lateral flexion to 32 degrees, right lateral flexion to 33 degrees, left rotation to 42 degrees and right rotation to 43 degrees.  Active range of motion averaged 31 degrees for flexion, 18 degrees for extension, 22 degrees for left lateral flexion, 27 degrees for right lateral flexion, 37 degrees for left rotation and 35 degrees for right rotation.

In a statement received in April 2006, the Veteran argued that he was entitled to a disability rating of at least 30 percent for his cervical spine disability.  He described a progressive worsening of pain intensity and limitation of motion since his cervical spine surgery.  He reported constant neck stiffness with a feeling as if a weight rested on the base of his neck and shoulders.  He had to move his whole body to turn his neck.  With weather changes, the Veteran experienced very limited motion and increased pain.  He complained that his VA examination involved a cursory examination without any evaluation of motion limited by pain.

With respect to his lumbar spine, the Veteran argued that he was entitled to a disability rating of at least 40 percent.  He reported an inability to sustain angled positions for longer than 30 seconds without pain of 9/10 severity.  He even experienced pain when sitting or lying down.  He described his lumbar spine disability as limiting his physical ability to perform any work requiring bending.

With respect to his basal cell carcinoma, the Veteran indicated his belief that he was entitled to a 30 percent rating.  He asserted that he manifested two or more characteristics of disfigurement having 3 basal cell excisions on his left neck with scarring and pigmentation change, a basal cell excision below his right eye with elevated scarring, and basal cell skin scrapes on his left eye brow and top of scalp with pigmentation change.  He also described a significant scar on the left side of his throat, measuring 1/4 inch wide by 11/2 inches long from his cervical spine surgery.  He also believed that he was entitled to a 10 percent rating for basal cell skin scrapes on his left arm and right shoulder as well as basal cell excision on the base of his right throat.  At that time, the Veteran submitted his own photocopies of the affected skin areas.

The Veteran's clinic records next reflect that a shave biopsy for a skin lesion on his back in May 2006 returned a diagnosis of basal cell carcinoma.  He underwent excision of another basal cell carcinoma of the upper back in July 2006.  An April 2007 evaluation noted the Veteran's report of walking 4 miles twice a week and 6 miles twice a month.  Examination of his back showed no swelling, induration, erythema, warmth, tenderness on palpation, muscle spasm or costovertebral tenderness.  A neurologic examination reflected a motor examination demonstrating no dysfunction.  Balance, gait, stance and reflexes were normal.  Similar findings were provided in a May 2008 examination.  In November 2008, the Veteran sought treatment for mild low back pain of 3/10 severity.  No pertinent findings were provided.

The Veteran underwent another VA C&P skin examination in November 2008.  The Veteran reported a history of 10 basal cell carcinoma diagnoses which had been surgically removed with small but numerous scars.  He had Mohs surgeries several times on the left ear site, on the left neck and the right cheek.  He also had multiple treatments with liquid nitrogen to treat actinic keratoses.  In pertinent part, physical examination demonstrated the following:

	1) a 5 mm. x. 3 cm. infraorbital scar on the right cheek which was not disfiguring;
	2) a 5 mm. surgical linear scar on the left cheek which was not disfiguring;
	3) a 2 mm. surgical linear scar on the left ear which was well healed, and not adherent to the underlying skin or other structures;
	4) a 3 cm. hypopigmented scar on the dorsal surface of the left forearm which was not adherent to the underlying skin and not disfiguring; and
	5) 3 scars on the right shoulder from skin lesion removals which were approximately 2 cm to 3 cm in size which were well-healed, not adherent to underlying skin and not disfiguring.

The VA examiner described these scars as unattractive and undesirable, but not markedly disfiguring.  The examiner also diagnosed sun damaged skin and stucco keratoses, florid acnea rosacea, multiple keratoses, tinea pedis and marked xerosis of the skin.

On VA C&P joints examination in November 2008, the Veteran described a history of cervical spine pain which had progressively worsened.  He had two trials of pain management following his surgery which consisted of anti-inflammatory medications.  The Veteran also described a history of lower back pain with limited mobility which had not improved despite multiple episodes of pain management between 2004 and 2005.  He described pain located at the cervico-thoracic junction.  He had a constant feeling of a crick in the neck as well as having a heavy weight.  He also had constant pain approximately 8 inches above the tailbone that was moderate in degree.  He had a severe, sudden brief worsening of his pain with certain types of activities.  He also described his pain as piercing, sharp and "immobilizing."  He endorsed additional symptoms of decreased motion, stiffness and weakness.  He denied fatigue or spasms.  The Veteran also felt that his arms were weak, the right worse than the left.  He denied limitations in walking, but reported his neck pain may worsen causing him to stop.

On examination, the Veteran demonstrated a right pelvic tilt with normal head position.  He got up and walked cautiously with a right tilt.  He had an abnormal spinal curvature involving a list, but no gibbus, kyphosis, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis.  There was no ankylosis of the cervical or thoracolumbar spine.  There was also no spasm, atrophy, guarding, pain with motion, tenderness or weakness in the cervical sacrospinalis and thoracic sacrospinalis.  The cervical spine demonstrated active motion with flexion to 30 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, left lateral rotation to 40 degrees and right lateral rotation to 55 degrees.  There was no objective evidence of painful motion or additional limitation of motion after repetitive testing.  The thoracolumbar spine demonstrated active flexion to 45 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 12 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 20 degrees.  There was no objective evidence of pain or additional limitation of motion after repetitive testing.  A computed tomography (CT) scan of the lumbar spine was interpreted as showing diffuse degenerative changes of the lumbosacral spine.

The examiner diagnosed degenerative arthritis of the cervical spine, status post multi-level cervical fusion with consequent pain and limited motion.  The effects of this disability on a usual daily basis was severe for recreation and traveling, moderate for exercise and mild for dressing.  The Veteran was prevented from playing sports.  He had no limitations with chores, shopping, feeding, bathing, toileting or grooming.

The examiner also diagnosed multi-level degenerative disc disease of the lumbar spine with possible L4 radiculopathy and consequent pain.  The effects of this disability on usual daily basis were severe for chores, and mild for shopping and dressing.  The Veteran was prevented from exercise, sports, recreation, and traveling.  He had no limitations with feeding, bathing, toileting or grooming.

On VA C&P peripheral nerves examination in February 2009, the Veteran described numbness and tingling sensation in his limbs as well as a sensation of "vibration."  His symptoms were better or worse at unpredictable times.  On examination, the Veteran's fine, dextrous movements were mildly impaired.  He reported that working on a detailed project was difficult and may require one hand holding or supporting the other.  His most prominent symptom in the right hand was lack of dextrous movement, as well as coarse movement, such as starting a lawn mower.  His most prominent symptom in the left arm was weakness.  The examiner described these symptoms as "moderate" in degree.  The Veteran's most prominent symptoms in both legs involved burning, numbness and tingling which were exacerbated by walking and required rest and use of oversized shoes to reduce pressure.  He endorsed symptoms of weakness, tremors, stiffness, numbness, paresthesias, dysesthesias, pain and impaired coordination.  

On examination, the Veteran's manual muscle testing, which was described as a crude measure of strength, was normal.  The Veteran's right upper extremity showed 5/5 strength with normal dexterity by crude stereognosis and graphesthesia testing, and normal sensory examination to vibration, pain, light touch and position sense.  There was 2+ bicep reflex, and no reflexes of the tricep or brachioradialis.  The left upper extremity showed 5/5 strength with no motor function impairment and normal sensory examination to vibration, pain, light touch and position sense.  There was 2+ bicep reflex, and no reflexes of the tricep or brachioradialis.  The right lower extremity showed impairment of the distal nerve with decreased light touch, but normal vibration and position sense.  There were no knee or ankle reflexes, but normal plantar flexion.  The left lower extremity showed impairment of the distal nerve with decreased light touch and absent vibration of the great toe.  There was 2+ knee reflex, no ankle reflex and normal plantar flexion.  The Veteran did not demonstrate any muscle atrophy or abnormal muscle tone or bulk.  There was a mild bilateral tremor which was greater on the right.  There was no gait imbalance, but the Veteran reported less balance than normal.  The Veteran also had erectile dysfunction partially aided by medications.  The examiner diagnosed sensory and motor peripheral neuropathy with chronic cervical and lumbar spondyloarthropathy.  The examiner indicated that these disabilities had no effects on the Veteran's usual daily activities, but noted that he appeared to be suffering more than he was willing to admit.

On VA C&P skin examination in March 2009, the examiner described the Veteran as manifesting a linear cervical spine surgical scar which measured 5 cm in length and 1 cm. wide.  This scar was well-healed, not disfiguring, not tender and not adherent to underlying structures.  There were multiple small surgical scars scattered over the Veteran's face and body with some measuring as much as 8 to 10 mm.  The Veteran had a sea of keratoses on his face, trunk and extremities.  The Veteran's residuals of basal cell carcinoma were deemed distinct from his seborrheic dermatitis.  The surgical scars, which did not exceed 144 square inches, were not deep, productive of limited motion, unstable or painful.  A few of the scars were more than .6 cm at their widest part.  He may have had a residual basal cell carcinoma over the left cheek which had been removed in November.  At the superior portion of that scar, there was a 3 to 4 mm. suspicious papule which required investigation.

By means of a rating decision dated April 2009, the RO increased the disability rating for thoracolumbar spine disability to 20 percent, effective November 12, 2008.  The RO also awarded a 10 percent rating for residuals of excisions of basal cell carcinomas to 10 percent disabling, under DC 7818-7800, effective September 1, 2004.

An April 2009 evaluation noted that the Veteran continued to walk 4 miles twice a week and 6 miles twice a month.  He continued to experience low back pain.  Examination of his neck was significant for a large circumference, but otherwise demonstrated no abnormalities or decrease in suppleness.  The back examination showed no swelling, induration, erythema, warmth, tenderness on palpation, muscle spasm or costovertebral tenderness.  A neurologic examination reflected a motor examination demonstrating no dysfunction.  Balance, gait, stance and reflexes were normal.  

A May 2010 treatment record included the Veteran's report of moderate left foot pain of 5/10 severity.  He continued to report chronic back pain, and had experienced toe pain since he started to run.  Examination findings for the neck and back were similar to the April 2007 evaluation.  The toe pain was attributed to likely osteoarthritis (OA).

The Veteran underwent additional orthopedic examination in April 2012, with benefit of review of his claims folder, for the purpose of addressing the existence and frequency of any incapacitating episodes of IVDS that required bed rest prescribed by a physician.  The Veteran described significant limitation of cervical spine motion and discomfort, but he denied incapacitating discomfort requiring severe limitation of activities.  He reported tingling in his hands which the examiner felt did not describe radicular-type symptomatology.  The Veteran also reported lower back pain primarily at the lumbosacral junction and left buttock region.  He had tingling in his feet which the examiner felt did not describe radicular-type symptomatology.  

On examination, the Veteran had a normal gait and was able to heel and toe walk without difficulty.  The examiner described the cervical spine as demonstrating significant limitation of motion with the Veteran able to bring his chin onto his chest.  There was extension to 15 degrees, rotation to 20 degrees bilaterally with discomfort beyond that point, and bending to 15 degrees bilaterally with discomfort beyond that point.  There were no supraclavicular masses.  The examiner found normal functioning of the deltoids, biceps, triceps, wrist extensors, wrist flexors, and grasp.  The radial pulse was palpable bilaterally, and did not obliterate with elevation above 90 degrees.  The lumbar spine demonstrated flexion to 50 degrees, extension to 5 degrees, and side bending to 15 degrees bilaterally.  There were no buttock masses.  The Veteran had normal functioning of hip flexors, abductors, adductors, quadriceps, hamstrings, anterior tibialis, extensor hallucis longus, peroneals and triceps surae.  Deep tendon reflexes were symmetric in the lower extremities, and straight leg raising in the sitting position was negative bilaterally.  There was a palpable pedal pulse bilaterally.  The feet coloration was unremarkable.

In summary, the VA examiner offered an assessment of post-surgical anterior cervical fusion with residual limited cervical spine motion.  The Veteran also had chronic low back pain with moderate limitation of motion.  On review of the record, the VA examiner did not find any significant change of disability from the prior examinations.  In this respect, the Veteran's limitations were basically the same and he did not have significant disability to the point where he must cease all activity due to neck or low back pain.  The examiner also indicated that the symptoms of dysesthesias in the hands and feet were not typical of radicular symptoms stemming from a cervical or lumbar focal lesion, which raised concern of a peripheral neuropathy to be better addressed by a neurology examination.

In April 2012, the Veteran also underwent VA neurology examination, with benefit of review of his claims folder, for the purpose of addressing the extent of neurologic impairment for each extremity, and opinion as to whether the overall severity was mild, moderate, moderately severe or severe in degree.  The Veteran described a loss of sensation in both feet which was not particularly painful.  He also reported some difficulty with fine coordination in his upper extremities, but he did not experience pain.  On examination, the Veteran demonstrated a normal gait including tandem.  A Romberg test was negative.  The muscle tone and bulk in all muscle groups were normal with full power throughout.  For the upper extremities, the triceps jerks were absent, but the biceps jerks were normal bilaterally.  Vibratory sense, stereognosis and graphesthesia were normal.  Pinprick was without radicular deficit.  The limbs were not dyesthetic to touch.  With respect to the lower extremities, the bilateral knee jerks (KJs) and right ankle jerk (AJ) were absent, and the left ankle jerk was present.  The plantar flexor responses were normal.  No involuntary movements were observed.  There was a decreased vibratory sense in the toes, and mildly in the ankles.  Position sense of toe movement was normal.  Monofilament was normal.  Pinprick sensation was symmetric without radicular deficit.  Temperature sense was preserved in the feet.

Overall, the VA examiner diagnosed peripheral sensory neuropathy with lumbar radiculopathy.  The disability affected occupational activities due to pain with decreased mobility, manual dexterity and strength as well as problems in lifting and carrying.  The Veteran's back pain limited standing for periods of standing for more than 10 minutes, and was less problematic when walking or moving.  The examiner explained that the Veteran did not complain of numbness beyond the level of mild in any of his limbs, and the examination findings showed mild sensory loss in the lower extremities only.  There was no motor weakness, and the Veteran had not experienced any incapacitating episodes related to lumbar or cervical radiculopathy over the last 12 months.  The examiner also concluded that there were no physical findings to support a diagnosis of cervical radiculopathy.

IV.  Analysis

A. Cervical spine

Considering the pertinent evidence in light of the applicable criteria, as well as the approximating principles of 38 C.F.R. § 4.7 and the doctrine of the benefit of doubt, the Board finds that the preponderance of the evidence is against awarding initial disability ratings in excess of 20 percent for orthopedic manifestation of cervical spine disability, and 10 percent ratings, each, for numbness of the right and left lower upper extremity as neurological manifestations of cervical spine disability, for any time during the appeal period.

Collectively, the credible lay and medical evidence shows that, since the September 1, 2004 effective date of the award of service connection, the orthopedic manifestation of cervical spine disability and IVDS has been forward flexion greater than 15 degrees, without ankylosis of the cervical spine, even when considering functional impairment on repeated use or during flare-ups.  The neurologic manifestations of cervical spine disability and associated IVDS have resulted in no more than a mild sensory, reflex and motor impairment of both upper extremities.  Further, there have been no incapacitating episodes of cervical spine IVDS.

With respect to the orthopedic manifestation of cervical spine disability, the next higher, 30 percent rating requires forward flexion of the cervical spine 15 degrees or less, or ankylosis of the entire spine.  The record reflects that the Veteran underwent surgical fusion of C5-C6 and C6-C7.  Thus, the Board finds ankylosis of these two cervical vertebrae.  However, the Veteran's treatment records from WRNMMC, as well as the reports of VA examinations in June 2005, December 2008 and April 2012, describe active movement of the cervical spinal segment as a whole.  The June 2005 and November 2008 VA examiners expressly found that there was no ankylosis.

The Veteran describes limitation of cervical spine motion, neck stiffness and having to move his whole body to turn his neck.  He has not alleged actual ankylosis of the cervical spinal segment.  To the extent that his comments may be construed as such, the Board places greater probative weight to the findings of the examiners in this case who possess greater training and expertise than the Veteran in evaluating whether ankylosis is present.  Thus, the Board finds that a higher initial rating is not warranted on the basis of ankylosis of the cervical spine.

Pertinent to this appeal, the Veteran's cervical spine forward flexion has been measured as 30 degrees (on June 2005 VA examination), 31 degrees (noted in an April 2006 treatment record), and 30 degrees (on November 2008 VA examination).  Otherwise, a VA examiner in April 2012 described flexion to the extent that the Veteran could bring his chin onto his chest, which clearly reflects motion beyond 15 degrees.  These findings fall well short of the criteria for a 30 percent rating for motion loss under the General Rating Formula for Diseases and Injuries of the Spine.

The Board also finds that the 20 percent rating assigned for cervical spine limitation of motion adequately compensates the Veteran for any functional loss due to pain and other factors noted in sections 4.40 and 4.45, and DeLuca, during the period in question.  The Veteran has credibly described chronic neck pain with limited motion exacerbated with weather changes.  He has described functional limitations such as having to move his whole body, instead of just his neck, to look to the side or behind him. 

The June 2005 VA examiner found no evidence of "DeLuca" issues with respect to pain, fatigue, weakness, lack of endurance or incoordination.  Similarly, the November 2008 VA examiner found no objective evidence of painful motion or additional limitation of motion after repetitive testing.  However, the November 2008 VA examiner described the cervical spine disability has causing severe limitations in recreation and traveling, moderate limitations for exercise, and mild limitations with dressing.

In totality, the Veteran's report of functional limitations is credible.  However, the clinical findings do not detect any significant additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, associated with the cervical spine which is not contemplated by the 20 percent rating for limitation of cervical spine motion.  Notably, the Veteran reports walking 4 miles a day twice a week, 6 miles once a month and he recently began to run.  Thus, the extent of the Veteran's limitations as reported by the Veteran is not as severe as reported by the VA examiner in April 2012.  As such, the Board finds that the DeLuca factors (noted above) provide no basis for assignment of a rating in excess of 20 percent for the orthopedic manifestation of cervical spine disability for any time during the appeal period.

With respect to the neurologic manifestations of cervical spine disability, the Veteran has been assigned separate 10 percent ratings for numbness of the right and left upper extremities.  Notably, the Veteran's right upper extremity is the major limb.  The Veteran has described pain, tingling, limited motion and loss of strength of both arms, although his symptoms are generally worse on the right which include lack of dextrous movement as well as coarse movement.

As it pertains to both upper extremities, the findings have been variable.  For example, VA examination in June 2005 found definitive neurologic involvement of the C6-C7 distribution affecting the lateral forearm as well as the index and lateral long fingers with sensory deficit and motor weakness involving the biceps, triceps and radial wrist extensors in elbow extension.  VA examination in February 2009 was significant for no reflexes of the triceps or brachioradialis.  VA examination in April 2012 was significant for absent tricep jerks only.

On the other hand, the VA examination in June 2005 described full right upper extremity strength.  VA examination in February 2009 showed 5/5 strength bilaterally with normal dexterity by crude stereognosis and graphesthesia testing, normal sensory examination to vibration, pain, light touch and position sense, and 2+ bicep reflex.  VA examination in April 2012 showed no motor or sensory abnormality of the upper extremities.  Additionally, the evaluations in the clinical setting showed good coordination with no motor or sensory abnormalities in March 2006.

Notably, the April 2009 VA neurology examiner described the Veteran's overall bilateral upper extremity symptoms as "moderate" in degree while the VA examiner in April 2012 described only a mild level of numbness sensation reported by the Veteran.

The Board finds that the lay and medical evidence, as a whole, indicates no more than mild, incomplete paralysis of the median nerve in both upper extremities since the effective date of the award of service connection.  The Veteran reports numbness and weakness of both upper extremities, and describes dexterity impairment of the right upper extremity.  Yet, this weakness is not detectable on crude stereognosis testing in the clinical setting or on the most recent VA examination.  There is no lay or medical evidence of muscle atrophy, abnormal muscle tone, trophic changes, abnormal finger flexion, or significant grip weakness detectable on examination.

In the opinion of the Board, the Veteran's complaints of bilateral upper extremity symptoms are credible and consistent with the entire evidentiary record.  However, the Veteran's perceptions regarding the extent of any upper extremity weakness is not greater than what would be considered normal on "crude" testing on all but the initial June 2005 examination.  A VA examiner in February 2009 commented that the Veteran reported "moderate" symptoms but then reported that the upper extremity neurologic disability had no effects on the Veteran's daily activities.  A VA examiner in April 2012 described the Veteran as experiencing a mild sensory impairment only.  When evaluating the relative impairment in motor function, reflex abnormality and sensory disturbance, the bilateral upper extremity neurologic disability is manifested by no more than mild sensory, reflex and motor abnormality.

Finally, the Board addresses a potentially higher rating based upon the Formula for Rating IVDS Based on Incapacitating Episodes.  The Veteran has denied experiencing incapacitating episodes of cervical spine IVDS.  The record also does not reflect any prescribed periods of bedrest for cervical spine IVDS during the appeal period.  Thus, the Board finds that this alternative rating method likewise provides not basis for any higher rating.

In so holding, the Board has found the Veteran's report of symptomatology and functional limitations as competent and credible evidence in support of his claim.  Notably, the Veteran describes cervical limitation of motion and upper extremity pain and weakness.  With regard to the extent of severity of those symptoms, the Board finds that the specific, objective clinical findings by the VA physicians greatly outweigh the Veteran's contentions, as the VA examiners used a goniometer to more accurately measure the cervical spine motion, and conducted testing such as stereognosis and graphesthesia which more accurately describe the severity of the neurologic manifestations of cervical spine disability.  There is no doubt as to any material fact to be resolved in the Veteran's favor.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

B.  Lumbar spine

Considering the pertinent evidence in light of the applicable criteria, as well as the approximating principles of 38 C.F.R. § 4.7 and the doctrine of the benefit of doubt, the Board finds that the preponderance of the evidence is against awarding initial disability ratings greater than 10 percent for orthopedic manifestations, prior to November 12, 2008; 20 percent for orthopedic manifestations, from November 12, 2008; and 10 percent, each, for numbness of the right and left lower extremities as neurological manifestations.

Collectively, the credible lay and medical evidence shows that, for the time period from September 1, 2004 to November 12, 2008, the orthopedic manifestation of lumbar spine disability with associated IVDS was manifested by forward flexion to 70 degrees with a combined range of motion of 170 degrees, even when considering functional impairment, without ankylosis or abnormal spinal contour.  For the time period since November 12, 2008, the orthopedic manifestation of lumbar spine disability with associated IVDS has been forward flexion greater than 30 degrees, without ankylosis of the cervical spine, even when considering functional impairment on use or flare-ups.  Since the effective date of the award of service connection, the Veteran has consistently demonstrated a mild sensory loss with reflex abnormalities, and inconsistent findings for any motor dysfunction, which results in no more than mild incomplete paralysis of the sciatic nerve.  Additionally, since the effective date of the award of service connection, there have been no incapacitating episodes of thoracolumbar spine IVDS.

With respect to the orthopedic manifestation of lumbar spine disability, the Veteran has been awarded a 10 percent rating for the time period from September 1, 2004 to November 12, 2008.  For this time period, the Veteran described thoracolumbar spine pain which was exacerbated with physical activity and resulted in limitation of motion.  However, the Veteran did not describe the extent of motion loss in degrees.  

The evidence of record for this time period included a June 2005 VA examination report which showed forward flexion to 70 degrees with a combined range of motion of 170 degrees.  There was no ankylosis.  The clinical records reflected evaluations for low back pain in March 2006 and May 2008 which demonstrated no paravertebral spasms with normal findings for motor, balance, gait, stance and reflexes.  There was no clinical description of guarding or muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour.  A November 2008 treatment record, which noted mid-low back pain of 3/10 severity, did not report any pertinent findings.  These findings fall well short of the criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine.

The Veteran was awarded a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine effective November 12, 2008, which is the date of a VA examination.  That examination demonstrated forward flexion to 45 degrees with a combined range of motion of 132 degrees.  The Veteran had an abnormal gait with a right-sided pelvic tilt.

The Board first observes that it cannot be factually ascertained from the record that the Veteran met the criteria for a 20 percent rating prior to November 12, 2008.  Beyond the June 2005 VA examination report and private treatment records dated March 2006, May 2008 and November 2008, the record does not contain any other relevant medical records prior to November 12, 2008 which suggested an increased severity of thoracolumbar spine disability.  

The Veteran submitted a statement in April 2006 describing his lumbar spine symptoms and functional limitations, but he did not provide specific statements pertaining to motion loss in terms of actual degrees, muscle spasm, muscle guarding, etc.  His description of symptoms during his November 12, 2008, VA examination did not reflect any particular date or event of increased symptomatology. 

Quite simply, the Board finds no reliable lay or medical evidence from which it can be factually ascertained that the 45 degree motion loss and right pelvic tilt demonstrated on the November 12, 2008 VA examination had been present prior to that time.  Thus, a 20 percent rating is not warranted for any period of time prior to November 12, 2008.

The Board next finds that, since November 12, 2008, the criteria for a rating greater than 20 percent for the orthopedic manifestation of lumbar spine disability have not been met at any time.  In addition to the results from the November 12, 2008 VA C&P examination, an April 2012 VA orthopedic examination measured forward flexion to 50 degrees.  There was no ankylosis.  There are no clinic records describing either forward flexion of 30 degrees or less, or ankylosis.  The Veteran himself has not specifically described these findings.  Thus, the Board finds that a rating greater than 20 percent since November 12, 2008 is not warranted.

The Board also finds that the 10 percent rating assigned for the orthopedic manifestation of lumbar spine disability prior to November 12, 2008, and the 20 percent rating assigned since November 12, 2008, adequately compensates the Veteran for any functional loss due to pain and other factors noted in sections 4.40 and 4.45, and DeLuca, during the period in question.  The Veteran has credibly described back pain exacerbated by certain movements.  He has described functional limitations of not being able to remain in certain positions without severe pain, and being limited from performing bending activities. 

The VA examiner in June 2005 found no evidence of "DeLuca" issues with respect to pain, fatigue, weakness, lack of endurance or incoordination.  Similarly, the VA examiner in November 2008 found no objective evidence of pain or additional limitation of motion after repetitive testing.  However, the November 2008 VA examiner noted that a right-sided pelvic tilt was present, and described the lumbar spine disability as preventing exercise, sports, recreation and traveling, as having severe limitations for chores, and mild limitations for shopping.  

The Board notes, however, that the functional effects described by the VA examiner are, in some respects, at variance with the Veteran's self-reported capabilities.  For example, in April 2007 and April 2009, the Veteran described walking 4 miles twice a week and 6 miles twice a month.  In May 2010, the Veteran described foot pain after he started running.

In totality, the record clearly reflects that the Veteran's low back disability results in functional limitations.  However, the clinical findings do not detect any significant additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, associated with the lumbar spine which is not contemplated by the assigned schedular ratings for limitation of lumbar spine motion.  As such, the Board finds that the DeLuca factors (noted above) provide no basis for assignment of a rating in excess of 10 percent prior to November 12, 2008, and 20 percent thereafter, for the orthopedic manifestation of lumbar spine disability for any time during the appeal period.

With respect to the neurologic manifestations of lumbar spine disability, the Veteran has been assigned separate 10 percent ratings for numbness of the right and left lower extremities.  The Veteran has described pain and numbness sensation in the lower extremities.  He describes having less balance than normal, and endorses symptoms of weakness, tremors, stiffness, paresthesias, dysesthesias and impaired coordination.

As it pertains to both lower extremities, the findings again have been variable.  For example, VA examination in June 2005 found neurologic involvement of the L5-S1 distribution affecting the lateral leg, dorsal foot, great toe and hip abduction, sensory deficit and 3/5 motor weakness.  A November 2008 VA examiner described the Veteran's overall functional impairment as preventing exercise, sports, recreation and traveling, as severe for chores, and mild for shopping and dressing.  A VA neurology examination in February 2009 was significant for decreased light touch along the right distal nerve, absent knee and ankle reflexes, and mild tremor. The left lower extremity was significant for decreased light touch along the distal nerve, absent vibratory sense of the great toe, no ankle reflex, and mild tremor.  An April 2012 VA neurology examination was significant for absent knee jerks and right ankle jerk, and decreased vibratory sense in the toes and ankles.

However, an evaluation of the Veteran's lower extremities in the clinical setting described normal findings for motor, balance, gait, stance and reflexes in March 2006, May 2006, May 2008 and April 2009.  The February 2009 VA neurology examination found no gait imbalance.  An April 2012 orthopedic examination found normal gait and toe heel walk as well as normal functioning of the lower extremity muscles.  The April 2012 neurology examination found no involuntary movements, normal position sense of toe movement, and normal sensation for monofilament, pinprick and temperature.  This examiner opined that the Veteran only demonstrated a mild sensory loss with no motor weakness.

The Board finds that the lay and medical evidence, as a whole, describes no more than mild, incomplete paralysis of the sciatic nerve in both lower extremities since the effective date of the award of service connection.  The Veteran has consistently demonstrated a mild sensory loss with reflex abnormalities, and inconsistent findings for any motor dysfunction.  There is no lay or medical evidence of muscle atrophy, abnormal muscle tone, trophic changes, foot dangling, or weakened knee or hip flexion.  

In the opinion of the Board, the Veteran's complaints of bilateral lower extremity symptoms are credible and consistent with the entire evidentiary record.  However, the Veteran's perceptions of bilateral lower extremity functional impairment being greater than mild are not borne out by the overall evidentiary record.  Notably, the assessments of the Veteran's lower extremity symptoms causing more than mild functional impairments are not consistent with the Veteran's own report of walking 4 miles twice a week, 6 miles once a month, and being able to run.  When evaluating the relative impairment in motor function, reflex abnormality and sensory disturbance, the bilateral lower extremity neurologic disability is manifested by no more than mild sensory, reflex and motor abnormality.

Finally, the Board addresses a potentially higher rating based upon the Formula for Rating IVDS Based on Incapacitating Episodes.  The Veteran has described exacerbations of low back pain when in certain positions, which appear to be brief in duration.  The record also does not reflect any prescribed periods of bedrest for lumbar spine IVDS during the appeal period.  Thus, the Board does not find that this alternative rating method is more favorable to the Veteran in application.

In so holding, the Board has found the Veteran's report of symptomatology and functional limitations as competent and credible evidence in support of his claim.  However, with regard to the extent of severity of those symptoms, the Board finds that the specific, objective clinical findings by the VA physicians greatly outweigh the Veteran's contentions, as the VA examiners used a goniometer to more accurately measure the lumbar spine motion and used their clinical expertise to evaluate the nature and severity of his neurologic deficits.  There is no doubt as to any material fact to be resolved in the Veteran's favor.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.


C.  Scars

Considering the pertinent evidence in light of the applicable criteria, as well as the approximating principles of 38 C.F.R. § 4.7 and the doctrine of the benefit of doubt, the Board finds that the preponderance of the evidence is against awarding an initial disability rating greater than 10 percent for excision of basal cell carcinomas.

Collectively, the credible lay and medical evidence shows that, since the effective date of the award of service connection, the basal cell excision scars on the cheeks, the left ear, vertex of the scalp, left forearm, right shoulder, right eye brow and left neck do not result in visible scarring with more than one characteristic of disfigurement, or scarring resulting in limitation of motion, involving an area of 144 inches (929 cm.), instability, pain on examination, or limitation of function of any part.  

At the outset, the Board notes that the skin disability on appeal is limited to the excisions for basal cell carcinoma confirmed by biopsy diagnosis.  The Veteran has a multitude of skin abnormalities, including a 60 percent rating assigned for service-connected seborrheic dermatitis.  The Veteran has also undergone biopsy samplings for other skin abnormalities which were not basal cell carcinoma.

The record demonstrates that the Veteran has undergone basal cell carcinomas of the right cheek, the left cheek, the left ear, the vertex of the scalp, the left forearm, the right shoulder, the right eye brow and the left neck.  Notably, the 5 cm. x 1 cm. scar on the left throat is associated with cervical spine surgery, which is not part of the subject matter on appeal.

With respect to all of the scars involving the head, face or neck (the right cheek, the left cheek, the left ear, the vertex of the scalp, the right eye brow and the left neck), there is no lay or medical evidence that they measure 5 or more inches (13 or more cm.) in length or at least one-quarter inch (0.6 cm.) wide at the widest part.  Notably, the scars which measure at least one-quarter inch (0.6 cm.) are located on the right shoulder and left forearm.  It is not alleged or shown that these scars are adherent to underlying tissue, that the surface contour of scar is elevated or depressed on palpation, that there is underlying soft tissue loss, or that there is induration and inflexibility in an area exceeding six square inches (39 sq. cm.).

The Veteran has described 3 basal cell carcinoma scars on his left neck as demonstrating scarring and pigmentation change.  The Veteran has also described the basal cell excisions on his right eye, left eye brow and scalp as demonstrating scarring with pigmentation change.  However, the scarring characteristics for pigmentation change or abnormal skin texture require an area exceeding six square inches (39 sq. cm.) which is clearly not described by the Veteran, or shown by examination.  Thus, the Board must find that the Veteran's basal cell carcinoma excisions involving the head, neck and face do not result in the scarring characteristics of hypo-or hyper-pigmentation in an area exceeding six square inches (39 sq. cm.), or abnormal skin texture in an area exceeding six square inches.

Additionally, the Veteran has not specifically alleged visible or palpable tissue loss, gross distortion or asymmetry of any one visible feature.  The clinical descriptions by VA examiners reflect that the scars, while not desirable, are not disfiguring.  The Board has also reviewed the unretouched pictures of record and, to the extent the Board has any competence to speak to the subjective aspects of disfigurement or deformity, finds no pictorial evidence of gross distortion or asymmetry of any one visible feature.  See generally Buczynski v. Shinseki, 24 Vet. App. 221, 226 (2011) (holding that the Board was competent to speak to the issue as to whether a scar was "exceptionally repugnant" as it is not a medical term).

Overall, the criteria for a rating greater than 10 percent under DC 7800 have not been met.

The record does reflect that the Veteran demonstrates basal cell excision scars on his back, right shoulder and left forearm.  There is no lay or medical evidence that these scars, either singly or combined, result in limitation of motion or involve an area of 144 inches (929 cm.).  With respect to all of the scars, there is no lay or medical evidence that such scars are unstable, painful on examination, or result in limitation of function of any part.

Thus, the criteria for a rating greater than 10 percent under DCs 7801, 7802, 7803, 7804 and 7805 have not been met.

In totality, the Board finds that the preponderance of the evidence is against a rating greater than 10 percent for residuals of excisions of basal cell carcinoma.  In so holding, the Board finds that the specific, objective clinical findings by the VA physicians greatly outweigh the Veteran's skin characteristic descriptions, as the VA examiners possess greater training and expertise than the Veteran in describing the physical characteristics of the basal cell excision scars.  There is no doubt as to any material fact to be resolved in the Veteran's favor.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

D.  Extra-schedular Consideration

To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extra-schedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating.  Id.

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996).

In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extra-schedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

The Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance.  However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

Here, the Veteran describes cervical spine IVDS symptoms of pain and limitation of motion of the cervical spine and upper extremities, as well as numbness, tingling, weakness and impairment of dexterous movements of the upper extremities.  Similarly, the Veteran describes lumbar spine IVDS symptoms of pain and limitation of motion of the lumbar spine and lower extremities, as well as numbness, tingling, weakness and imbalance of the lower extremities.  Furthermore, the Veteran describes his scar disabilities as manifesting characteristics of disfigurement.

The criteria in the General Rating Formula for Diseases and Injuries of the Spine, and the General Rating Formula for Rating IVDS on Incapacitating Episodes, provide differing levels of disability ratings based upon factors such as limitation of motion, abnormal spinal contour, chronic neurologic impairment and incapacitating IVDS episodes.  Additionally, the provisions of 38 C.F.R. §§ 4.40 and 4.45 allow for consideration of any factors affecting functional impairment which might not be addressed in the schedular criteria.  Finally, the criteria for evaluating scars provide ratings based upon appearance, healing, and/or on impairment of function of the part affected.

In the opinion of the Board, all credibly demonstrated symptomatology and impairment of function related to the cervical spine disability, lumbar spine disability and excisions scars, either considered separately or combined, are adequately contemplated in the assigned schedular ratings evaluations.  As such, there is no basis for extra-schedular referral in connection with any claim on appeal.  See Thun, 22 Vet. App. 111, 114-15 (2008). 

E.  Total Disability Rating Based Upon 
Individual Unemployability (TDIU)

The Board notes that a claim for a TDIU, if reasonably raised, would essentially be a component of the claims for higher initial ratings on appeal.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that where a Veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU).

Here, the Veteran has been awarded a 100 percent schedular rating for his service-connected disabilities effective to the date of his discharge from active service.  As such, any potential issue of entitlement to a TDIU due to any of the disabilities under consideration has been rendered moot.











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ORDER

The claim for higher initial ratings for cervical spine disability, 20 percent for orthopedic manifestation, and 10 percent, each, for numbness of the right and left lower upper extremity as neurological manifestations, is denied. 

The claim for higher initial and subsequent ratings for lumbar spine disability, 10 percent for orthopedic manifestation, prior to November 12, 2008; 20 percent for orthopedic manifestations from November 12, 2008, and 10 percent, each, for numbness of the right and left lower extremities as neurological manifestations, is denied. 

The claim for an initial rating in excess of 10 percent for residuals of excisions of basal cell carcinoma is denied. 



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs