Citation Nr: 1315522 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-28 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for lumbar spine degenerative disc disease (DDD), prior to December 2, 2005. 2. Entitlement to a rating higher than 20 percent for lumbar spine DDD from December 2, 2005 to December 11, 2007. 3. Entitlement to a rating higher than 10 percent for lumbar spine DDD from December 12, 2007. 4. Entitlement to a rating higher than 20 percent for lumbar spine DDD from July 9, 2012. 5. Entitlement to an initial rating higher than 10 percent for cervical spine myofascial pain/DDD with spondylosis prior to April 18, 2011. 6. Entitlement to a rating higher than 20 percent for cervical spine myofascial pain/DDD from April 18, 2011 to July 9, 2012. 7. Entitlement to a rating higher than 20 percent for cervical spine myofascial pain/DDD from July 9, 2012. 8. Entitlement to service connection for left shoulder disorder, to include as secondary to lumbar and cervical spine disabilities. 9. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to July 1975, May 1984 to March 1987, and December 1990 to April 1991, with additional service in the Air Force Reserve. This case comes to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, with a complex procedural history. In August 2003, the RO denied service connection for lumbar spine, cervical spine, and left shoulder disorders. The Board denied these claims in July 2006, but the Veteran appealed the Board's denial of his claims to the United States Court of Appeals for Veterans Claims (Court), which in a February 2007 Order granted a Joint Motion for Remand by counsel for VA and the Veteran. The Court vacated the Board's decision and returned these matters to the Board for further review. In June 2007, the Board remanded the claims for further development. The RO subsequently granted the claims for service connection for lumbar and cervical spine disabilities and assigned staged ratings, which the Veteran timely appealed. The issues have thus been recharacterized as indicated on the title page and as discussed below. The RO has continued to deny the claim for service connection for a left shoulder disorder, and that issue is again before the Board in its original form. In addition, in October 2010, the Board, in deciding and remanding various claims, noted that the issue of entitlement to a TDIU had been raised by the evidence of record and was therefore an issue before the Board as part of the claims for higher ratings. The RO developed the TDIU claim and it too is now before the Board. Given the separate procedural histories of the above claims, separate docket numbers were assigned, one for the claims for higher ratings for lumbar spine disability and service connection for left shoulder disorder and one for the claims for higher ratings for cervical spine disability and for TDIU. The Board has, however, consolidated the claims under a single docket number pursuant to its policy that "[a]ll issues over which the Board has jurisdiction in an individual case will be addressed in a single document that disposes of issues ripe for disposition and remands any issues requiring development or other appropriate action by the agency of original jurisdiction (AOJ)." BVA Directive 8430, section 14(a) (Transmittal Sheet, May 17, 1999). The Board notes that none of the exceptions listed in section 14(c) apply to the issues decided herein: the claims all arise from the same AOJ, the Reno, Nevada RO, see section 14(c)(1) (separate decisions required where claims arise from different AOJs), the Veteran is represented in all matters by the same individual, an attorney whose fee agreement with the Veteran indicates that the attorney represents him in all matters before VA without limitation and inclusive of all issues, see section 14(c)(11) (separate decisions required when different representatives acted with respect to different issues), there are no issues involved other than entitlement to higher ratings, TDIU, and service connection, see section 14(c)(10)(a)(1)-(8) (separate decisions required for specific listed issues other than those in this case), and a single Travel Board hearing, a transcript of which is of record, was conducted by the undersigned in May 2006, see section 14(c)(9)(b) (separate decisions required if more than one VLJ conducts a hearing on different issues). There is thus no basis to treat the claims on appeal before the Board separately and they have been consolidated into a case with a single docket number, that being the older docket number pursuant to internal Board policy. The Board also notes that during the pendency of this appeal, the RO granted service connection for erectile dysfunction (ED) and entitlement to special monthly compensation (SMC). The Veteran timely appealed the ratings and effective dates assigned in these decisions and the RO issued an April 2012 statement of the case (SOC), but the Veteran indicated in his May 2012 substantive appeal (VA Form 9) that he had read the SOC and was appealing only the issues relating to the rating for the cervical spine disability, also adjudicated in the SOC. The remaining issues relating to the rating assigned for ED and the effective dates of the grant of service connection for ED and SMC are therefore not before the Board. See 38 C.F.R. § 20.202 (providing for appellant to specifically identify the issues being appealed). In an April 2006 letter, Dr. Dunn indicated that the Veteran suffered from depression and/or anxiety from his low back disability. The issue of entitlement to service connection for a psychiatric disorder secondary to lumbar spine DDD has thus been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. As a final preliminary matter, the Veteran's attorney submitted new evidence directly to the Board in February 2012, along with a waiver of initial AOJ review of this evidence, and the Board will therefore consider this evidence below. 38 C.F.R. § 20.1304(c) (2012) (appellant or representative may waive right of initial AOJ review of evidence). The issues of entitlement to service connection for left shoulder disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. From the January 3, 2003 effective date of the grant of service connection for lumbar spine DDD to July 9, 2012, symptoms of the Veteran's lumbar spine disability have most nearly approximated flexion of the thoracolumbar spine between 30 and 60 degrees, reflecting moderate limitation of motion, but not severe limitation of motion or favorable ankylosis of the entire thoracolumbar spine. 2. From the January 3, 2003 effective date of the grant of service connection for cervical spine disability, symptoms of the Veteran's cervical spine disability have most nearly approximated forward flexion of the cervical spine between 15 and 30 degrees, but not 15 degrees or less, reflecting moderate limitation of motion but not severe limitation of motion or ankylosis. 3. From July 9, 2012, the Veteran's lumbar and cervical spine disabilities have resulted in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for lumbar spine DDD have been met prior to December 2, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243 (2012); 38 C.F.R. § 5293 (2003). 2. The criteria for a rating higher than 20 percent for lumbar spine DDD have not been met from December 2, 2005 to December 11, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243. 3. The criteria for a rating of 20 percent, but no higher, for lumbar spine DDD have been met from December 12, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243. 4. The criteria for an initial rating of 20 percent, but no higher, for cervical spine myofascial pain/DDD with spondylosis have been met prior to April 18, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2012); 38 C.F.R. § 5290 (2003). 5. The criteria for a rating higher than 20 percent for cervical spine myofascial pain/DDD from April 18, 2011 to July 9, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. 6. From July 9, 2012, the criteria for the maximum schedular rating of 60 percent rating for lumbar spine DDD have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, DC 5243. 7. From July 9, 2012, the criteria for the maximum schedular 60 percent rating for cervical spine myofascial pain/DDD have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As noted above, the claims for higher ratings for lumbar and cervical spine disabilities arise from the Veteran's disagreement with ratings assigned in connection with the grant of service connection for these disabilities. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to these claims is unnecessary. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. In its October 2010 remand, the Board instructed that the RO/AMC obtain any outstanding relevant treatment records and afford the Veteran a new VA examination as to the severity of his back disability. The RO/AMC obtained the outstanding records and afforded the Veteran an April 2011 VA-authorized examination, which was supplemented with addenda. For the reasons indicated in the discussion below, the examination with addenda was adequate with regard to the claims being decided herein, and the RO/AMC therefore complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for higher ratings for lumbar and cervical spine disabilities are thus ready to be considered on the merits. Analysis General Legal Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, uniform 20 percent ratings are appropriate for both the lumbar and cervical spine disabilities. The Veteran's lumbar and cervical spine disabilities are rated under 38 C.F.R. § 4.71a, which contains criteria for rating the musculoskeletal system. The Veteran filed the claims for entitlement to service connection for lumbar and cervical spine disabilities that were ultimately granted in this case in January 2003. The criteria for rating disabilities of the spine were amended once during the appeal period, effective September 26, 2003. Those amendments also renumbered the relevant diagnostic codes and created a new general rating formula for diseases and injuries of the spine. The amended version of the criteria may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). With regard to the lumbar spine, prior to September 2003, DC 5292 provided ratings for limitation of motion of the lumbar spine when limitation was slight (10 percent), moderate (20 percent), or severe (40 percent). DC 5295 provided for a 20 percent rating where there was muscle spasm on extreme forward bending with loss of lateral spine motion, unilateral, in a standing position, and a 40 percent rating where there was listing of the whole spine to the opposite side with a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. With regard to the cervical spine, prior to September 2003, DC 5290 provided for a 20 percent rating for moderate limitation of the cervical spine and a 30 percent rating for severe limitation of the cervical spine. With regard to both the lumbar and cervical spine, prior to September 2003, DC 5293 provided that IVDS was to be rated based either on the total duration of "incapacitating episodes" over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating. Note 1 to DC 5293 defined an incapacitating episode as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. Under the criteria effective September 26, 2003, lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, DCs 5237-5242. IVDS is rated under the previously described Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, DC 5243. Under the general rating formula, a 20 percent 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 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. 50 and 100 percent ratings are warranted for unfavorable ankylosis of the entire thoracolumbar spine and the entire spine, respectively. 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, 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. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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. Under the Formula for Rating IVDS Based on Incapacitating Episodes, different ratings are warranted based on the frequency and duration of incapacitating episodes. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Lumbar Spine Prior to July 9, 2012 The Veteran is currently in receipt of a 10 percent rating for his lumbar spine disability from the January 3, 2003 effective date of the grant of service connection to December 2, 2005. As the criteria for rating disabilities of the spine changed during this period of time, the Board will consider both the former and amended versions of the criteria. On the July 2003 VA examination, range of motion of the thoracolumbar spine was flexion to 78 degrees (rounded to 80 pursuant to Note 4 of the general rating formula), extension 30 degrees, lateral flexion to 30 degrees bilaterally and rotation to 30 degrees bilaterally. The Veteran indicated that there was additional limitation of motion in the lumbar spine of about 50 percent due to flare-ups. There was no additional decreased range of motion due to body habitus and no pain on motion of the spine, but the examiner estimated that the Veteran would have about 5 to 10 percent decreased range of motion due to flare-ups during activities and employment, which would be characterized by pain and fatigue. There were no postural abnormalities, fixed deformities, or abnormality of musculature of the back. There were lumbar spasms but no IVDS, and the Veteran indicated that he had not been incapacitated for the previous 12 months due to lumbar spine pain. Letters from Dr. Dunn in January 2003, Dr. Chiarello in September 2004, and Dr. Washinsky in September 2004 did not contain specific range of motion findings but indicated that the Veteran had low back stiffness, discomfort, and pain and, according to Dr. Washinsky, severe DDD. Based on the above evidence, a 20 percent rating, but no higher, is warranted for lumbar spine DDD prior to December 2, 2005. Range of motion findings did not more nearly approximate either the moderate limitation of motion required for a 20 percent rating under former DC 5292 or the forward flexion between 30 and 60 degrees for a 20 percent rating under the general rating formula. The Veteran indicated, however, that he lost 50 percent of motion during flare-ups and is competent to opine as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, while the July 2003 VA examiner estimated a smaller degree of limitation due to flare-ups, he nevertheless indicated that there would be some additional loss of motion due to flare-ups, thus supporting the Veteran's observations in this regard. The Board therefore finds that, with reasonable doubt resolved in favor of the Veteran and taking account of additional limitation due to flare-ups, his symptoms prior to December 2, 2005 more nearly approximated the moderate limitation of motion or flexion between 30 and 60 degrees warranting an initial rating of 20 percent under the former DC 5292 and the general rating formula. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The Veteran is not, however, entitled to a higher 40 percent rating under either the former or amended criteria for this time period because the above evidence does not reflect that the symptoms more nearly approximated the severe limitation of motion required for such a rating under former DC 5292, symptoms of severe lumbosacral strain such as listing of the whole spine to the opposite side warranting a 40 percent rating under former DC 5295, or flexion 30 degrees or less or favorable ankylosis required for a 40 percent rating under the general rating formula. A rating higher than 20 percent for lumbar spine DDD is also not warranted from December 2, 2005 to December 11, 2007. Dr. Dunn indicated in a March 2006 letter that the Veteran underwent major reconstructive surgery in January 2006, consisting of a total disc replacement at L4-5 with an anterior interbody fusion with instrumentation at L5-S1. He indicated that the Veteran would need an extensive course of physical therapy to promote healing and maintain function as well as range of motion of the lumbar spine. A January 2006 Valley Hospital Medical Center radiology report indicated that there was disc replacement at L4-5 and a prosthetic disc was seen with anterior spinal fixation at L5-S1. The bones were in satisfactory alignment. Dr. Dunn wrote in a July 2006 treatment note that the Veteran was recuperating, had tenderness at the paralumbar region, and range of motion was limited. Dr. Dunn indicated that symptoms were improving in September 2006. In October and November 2006, January 2007, April 2007, May 2007, there was tenderness and spasms throughout the paralumbar region and range of motion was limited. The April 2007 note indicated that the Veteran had flare-ups with severe back pain. Gait was normal and the Veteran was able to rise on his toes and heels without evidence of weakness. The diagnosis was acute lumbar pain, secondary to probable facet joint syndrome, status post reconstructive surgery. Dr. Dunn's August 2007 treatment note indicated that the Veteran had a flare-up of back pain and range of motion was "greatly restricted." On the September 2007 VA examination, range of motion was 0 to 80 degrees, extension 0 to 10 degrees, left lateral flexion to 20 degrees, right lateral flexion to 30 degrees, and right and left rotation were 0 to 20 degrees. With repetitive movement, right lateral flexion decreased to 10 degrees, left lateral flexion to 15 degrees, with pain causing the major functional impact. The Veteran indicated that he experienced flare-ups multiple times during the month that could last up to three days with an intensity of 7 out of 10 to 8 out of 10. There was also muscle spasm, tenderness, and guarding, but they were not severe enough to cause a change in spinal contour or gait. The above evidence reflects that range of motion figures did not more nearly approximate the forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine warranting a 40 percent rating under the general rating formula. Moreover, although there was some decrease in right and left lateral flexion on repetitive motion testing on the September 2007 VA examination, there was no reduction in forward flexion and the Veteran did not indicate the degree of additional limitation caused by flare-ups. In addition, although Dr. Dunn repeatedly indicated that range of motion was limited or "greatly restricted," and that the Veteran was experiencing flare-ups, he did not give specific range of motion figures or indicate the additional degree of restriction of motion from flare-ups. While in some circumstances, clarification of an inadequate examination may be sought from a private provider, here there is no indication that Dr. Dunn ever conducted specific range of motion studies during this time period, and a remand would therefore not result in additional, non-speculative evidence. Savage v. Shinseki, 24 Vet. App. 259 (2011) (citing 38 C.F.R. §§ 4.2 , 19.9(a)). In addition, while there was some ankylosis due to the January 2006 fusion surgery, see Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure), the evidence reflects that it was only ankylosis of a part of the thoracolumbar spine, specifically, L5-S1, and not the entire thoracolumbar spine as required for a 40 percent rating under the general rating formula. A rating in excess of 20 percent under the general rating formula is therefore not warranted for lumbar spine DDD between December 2, 2005 to December 11, 2007. As to the period from December 12, 2007, the Veteran is entitled to a rating of 20 percent, but no higher, for his lumbar spine DDD. On the March 2009 VA examination, range of motion of the thoracolumbar spine was to 90 degrees, extension to 10 degrees, left lateral flexion to 20 degrees and right lateral flexion to 15 degrees, and rotation to 30 degrees bilaterally. There was additional limitation after three repetitions of range of motion, specifically, left lateral flexion was reduced to 15 degrees. In addition, the Veteran indicated that he experienced fatigue, decreased motion, stiffness, weakness, spasm, and pain in the lower back, which he experienced daily for hours, and that he experienced severe flare-ups every 2 to 3 weeks, lasting 3-7 days. The Veteran indicated that the functional impairment caused by the flare-ups was 60 percent. In a May 2010 treatment note, Dr. Dunn wrote that due to the unexpected fusion across the total disc arthroplasty, the Veteran's loss of motion was 50 percent or his normal range. On the April 2011 VA-authorized examination, range of motion of the thoracolumbar spine was flexion to 90 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 10 degrees, and rotation to 10 degrees bilaterally. There was objective evidence of pain at the end of each movement. There was no muscle spasm, guarding, or localized tenderness, spinal contour was preserved, and there was normal gait and no ankylosis. The Veteran described severe flare-ups of the thoracolumbar spine, 2-3 times per month, 1-2 days in duration, resulting in more difficulty in movement, more pain, and decreased ability to do daily activities. Although there is some conflict between the VA examination reports and Dr. Dunn's May 2010 treatment note, the Veteran indicated on the VA examinations that there was additional limitation of motion due to flare-ups resulting in 60 percent loss of motion and both this and Dr. Dunn's estimate would put flexion at 36-45 degrees, which most nearly approximates the criteria for a 20 percent rating under the general rating formula. With reasonable doubt resolved in favor of the Veteran, a 20 percent rating is therefore warranted from December 12, 2007 for lumbar spine DDD. A higher rating is not warranted, however, because symptoms did not more nearly approximate forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Dr. Dunn indicated in an August 2011 letter that the Veteran had ankylosis or fusion from L4 to the sacrum but, as noted above, a 40 percent rating under the general rating formula requires symptoms more nearly approximating favorable ankylosis of the entire thoracolumbar spine, and the evidence including Dr. Dunn's statement indicates that only a small portion of the thoracolumbar spine was ankylosed. Cervical Spine Prior to July 9, 2012 As to the cervical spine, a rating of 20 percent, but no higher, is warranted prior to April 18, 2011. On the July 2003 VA examination, range of motion was flexion 0 to 38 degrees (rounded to 40 pursuant to Note 4 of the general rating formula), extension 40 degrees, lateral flexion 40 degrees bilaterally, and rotation 70 degrees on the right and 60 degrees on the left. The Veteran indicated that there was additional limitation of motion in the cervical spine of about 30 percent. There was no additional decreased range of motion due to body habitus and no pain on motion. The examiner estimated that the Veteran would have about 5 to 10 percent decreased range of motion due to recreation and sports characterized by pain and fatigue. There was no objective evidence of painful motion but some paracervical spasms. There were no postural abnormalities, no fixed deformities, or abnormality of the musculature of the back. On the September 2007 VA examination, forward flexion of the cervical spine was to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees bilaterally, rotation to 80 degrees bilaterally, and the Veteran complained of increasing pain and discomfort toward the end of the arc of all movement. There was also tenderness, muscle spasm, and guarding of mild degree, with the Veteran complaining of escalation of symptoms with repetitive movement of the head. There were no postural abnormalities, fixed deformities, or torticollis. The only decrease in range of motion noted after repetition was with regard to the thoracolumbar spine. On the March 2009 VA examination, range of motion figures were not given for the cervical spine, but there was no cervical spine ankylosis, no spasm, atrophy, guarding, pain with motion, tenderness, or weakness. The Veteran indicated that the extent of additional limitation of motion or other functional impairments during flare-ups was 60 percent. The private treatment records pertained primarily to the lumbar spine. The above evidence reflects that prior to April 18, 2011, while forward flexion of the cervical spine was 40-45 degrees, there was additional limitation during flare-ups that, with reasonable doubt resolved in favor of the Veteran, the Board finds would reduce the range of motion to more nearly approximate the forward flexion between 15 and 30 degrees warranting a 20 percent rating under the general rating formula or the moderate limitation warranting a 20 percent rating under former DC 5290. A rating higher than 20 percent is not warranted, however, because range of motion did not more nearly approximate forward flexion to 15 degrees or less, severe limitation of motion, or favorable ankylosis of the entire cervical spine. As to the period from April 18, 2011 to July 9, 2012, on the April 2011 VA examination, forward flexion was to 30 degrees, extension was to 30 degrees, left lateral flexion was to 30 degrees, right lateral flexion was to 20 degrees, left lateral rotation was to 80 degrees, and right lateral rotation was to 60 degrees. There was no objective evidence of pain as opposed to a feeling of tightness, and there was no evidence of painful motion, spasm, weakness, tenderness, atrophy, or guarding. There were no postural abnormalities, fixed deformities, or abnormalities of the musculature. The Veteran complained of continuous burning, aching, pressure in the cervical area, and indicated there were no flare-ups relating to the cervical spine. The evidence thus indicates that range of motion did not more nearly approximate the forward flexion of the cervical spine 15 degrees or less or the favorable ankylosis of the entire cervical spine required for a higher, 30 percent rating under the general rating formula. Incapacitating Episodes and Associated Objective Neurologic Abnormalities As to incapacitating episodes from IVDS, most of the above evidence indicated that there was no IVDS or incapacitating episodes during the relevant time periods. On the July 2003 VA examination, there was no IVDS and the Veteran indicated that he had not been incapacitated for the previous 12 months due to cervical or lumbar spine pain. In a July 2011 addendum, the April 2011 VA examiner indicated that there was no IVDS. On the March 2009 VA examination, the Veteran indicated that he had incapacitating episodes causing 50-80 days in bed for 1-2 days, but did not indicate that there was bed rest prescribed by a physician. As neither this nor any other evidence indicated that there were periods of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician, there were no incapacitating episodes as defined in the applicable regulation. As to whether a separate rating was warranted for neurologic symptoms during the above time periods, while there has been some evidence of radiating pain, the evidence throughout the appeal period reflects that neither this nor any other symptoms are the result of the "associated objective neurologic abnormalities" required for a separate rating under Note 1 of the general rating formula. On the July 2003 VA examination, sensory, motor, reflex, deep tendon, and cutaneous examination showed no deficit and there was no pathological reflex. Dr. Dunn's treatment notes throughout the appeal period, including notes of March 2006 and December 2008 indicated there were no neurological deficits. In a June 2011 treatment note, Dr. Dunn indicated that there were no objective motor or sensory deficits. On the September 2007 VA examination, sensory perception to light touch was intact to the upper and lower limb, motor examination showed no atrophy of the major muscle groups of the upper or lower extremity at the arm, forearm, thigh, or calf, muscle tone was satisfactory, motor strength was +5 in all major muscle groups of the upper and lower extremities, reflexes were intact, and straight leg raising was negative. There were no signs of radiculopathy. On the March 2009 VA examination, while the examiner noted numbness and leg or foot weakness, but motor, sensory, and reflex examinations were normal. On the April 2011 VA-authorized examination, sensation was intact, motor strength was 5/5, reflexes were intact and 2+. In a July 2011 addendum, the examiner indicated that there was a normal neurological examination of the lower extremities. As the evidence indicates throughout the relevant period that there were no objective neurologic abnormalities associated with lumbar or cervical spine disabilities, the Board finds that any radiating pain as described by the Veteran does not warrant a separate rating under Note 1 to the general rating formula. While the Veteran is competent to describe symptoms, the Board finds that the specific examination findings of trained healthcare professionals are of greater probative weight than the general lay assertions of the Veteran with regard to this question. Lumbar and Cervical Spine from July 9, 2012 In a July 9, 2012 letter, Dr. Dunn indicated that physical examination demonstrated marked loss of range of motion of the cervical and lumbar spine, predominantly the lumbar spine, in which range of motion was less than 15 percent of normal. In an October 2012 letter, Dr. Dunn indicated that the Veteran "has been pretty much at a bedridden status for approximately seven weeks this year, 2012, because of flare-ups of inflammation resulting in severe axial mechanical neck and low back pain. During these flare-ups, patient was prescribed bed-rest and medication." Dr. Dunn's October 2012 letter indicates that the Veteran has satisfied the criteria of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warranting the maximum schedular rating of 60 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. Dr. Dunn indicated that the Veteran was bedridden and was prescribed bed rest and treatment by a physician. As Dr. Dunn indicated that the incapacitating episodes were caused by both the lumbar and cervical spine disabilities, and Note 6 to the general rating formula provides that disabilities of the thoracolumbar and cervical spine are to be evaluated separately, the Veteran is entitled to separate 60 percent ratings for his lumbar and cervical spine disabilities. The only remaining question is the appropriate effective date for the 60 percent ratings. The October 2012 letter was the first to indicate that the Veteran had suffered incapacitating episodes as defined in the applicable Note, but the July 9, 2012 letter was the first to indicate a significant increase in the severity of the lumbar and cervical spine disabilities. Moreover, the October 2012 letter referred to a prior period of the year 2012. The Board therefore finds that the date of the July 9, 2012 letter is the appropriate effective date for the separate 60 percent ratings for the Veteran's lumbar and cervical spine disabilities. A rating higher than 20 percent is not warranted for either lumbar or cervical spine disability prior to July 9, 2012, however, because the evidence does not indicate worsening prior to that date. Although Dr. Dunn described a loss of 95 percent of lumbosacral motion in a September 2011 letter, Dr. Chiarello indicated in a September 2011 letter that there was a loss of 50 percent loss of normal range of motion of the lumbar spine. Because Dr. Chiarello's letter was more thorough detailed, the Board accords it more probative weight, and finds that the evidence did not warrant a rating higher than 20 percent until July 9, 2012. Extraschedular As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's lumbar and cervical spine disabilities are fully contemplated by the applicable rating criteria. Significantly, the general rating formula provides that is applies with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. These symptoms as well as incapacitating episodes are contemplated by the general rating formula and Formula for Rating IVDS Based on Incapacitating Episodes and fully encompass the symptoms described by the Veteran and demonstrated by the medical evidence. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required and referral for consideration of an extraschedular rating for lumbar and cervical spine disabilities is not warranted. 38 C.F.R. § 3.321(b)(1). Conclusion For the foregoing reasons, the evidence is at least evenly balanced as to whether ratings higher than 10 percent are warranted for lumbar spine DDD prior to December 2, 2005 and from December 12, 2007 to July 9, 2012 for lumbar spine DDD and for cervical spine disability prior to April 18, 2011, and the preponderance of the evidence is against any higher rating prior to July 9, 2012. The evidence also warrants separate 60 percent ratings for lumbar spine DDD and cervical spine disability from July 9, 2012. The benefit-of-the-doubt doctrine is applicable where the evidence is evenly balanced and warrants 20 percent ratings as indicated prior to July 9, 2012 and is otherwise not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to an initial rating of 20 percent, but no higher, for lumbar spine DDD, prior to December 2, 2005, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating higher than 20 percent for lumbar spine DDD from December 2, 2005 to December 11, 2007 is denied. Entitlement to a rating of 20 percent, but no higher, for lumbar spine DDD from December 12, 2007 to July 9, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating of 60 percent, but no higher, for lumbar spine DDD from July 9, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating of 20 percent, but no higher, for cervical spine myofascial pain/DDD with spondylosis prior to April 18, 2011, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating higher than 20 percent for cervical spine myofascial pain/DDD, from April 18, 2011 to July 9, 2012, is denied. Entitlement to a rating of 60 percent, but no higher, for cervical spine myofascial pain/DDD from July 9, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND The Veteran has claimed that his left shoulder disorder is related to his spine disability. The only medical opinion to clearly address this question is that of the April 2011 VA examiner, who opined in a May 2011 addendum that it was "less likely than not" that the Veteran's left shoulder disorder was related to his lumbar spine disability. In a January 2003 letter, Dr. Chiarello noted that after the Veteran served in the Gulf War, he started having problems with his shoulder, left arm, and back, and that heavy lifting probably contributed to the disease of his discs in his neck and spine. He did not offer an opinion as to the etiology of a left shoulder disorder. Significantly, in July 2011, the RO granted entitlement to service connection for myofascial pain/DDD with spondylosis of the cervical spine. There is no medical opinion addressing whether the Veteran's left shoulder disability is proximately due to or the result of his now service-connected cervical spine disability. In addition, there is no opinion addressing whether left shoulder disability is aggravated by service-connected lumbar or cervical spine disability. See 38 C.F.R. § 3.310(b). A remand is therefore warranted to obtain a new medical opinion. As to entitlement to a TDIU, the Veteran's attorney correctly notes that there are multiple private medical opinion indicating that the Veteran is unemployable due to his service-connected lumbar and cervical spine disabilities, including by Dr. Dunn, the Veteran's physical therapist, Ms. Miner, Dr. Wang, and Dr. Perry. In addition, the April 2011 VA examiner in a July 2011 addendum indicated that "sedentary employment is possible, but the Veteran is limited in any occupation that requires long standing and ambulation." This opinion appears to be of less probative value than the more thoroughly reasoned and definitive opinions of the healthcare providers noted above. Prior to July 9, 2012, however, the Veteran did not meet the criteria for a TDIU on a schedular basis, as he did not have a combined rating of 70 percent. See 38 C.F.R. § 4.16(a). Even where a Veteran does not meet the schedular standards, 38 C.F.R. § 4.16(b) codifies VA's policy under which all veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities "shall be rated totally disabled." The Board cannot, however, consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Given the multiple, probative medical opinions noted above indicating that the Veteran's service connected spine disabilities render him unemployable, the Board finds that extra-schedular consideration of a TDIU by the Director of Compensation is warranted in this case, and a remand is required for referral to the Director for such consideration. To the extent that either the Board's decision granting increased ratings or the RO's readjudication of the claim for entitlement to service connection for left shoulder disability results in eligibility for a TDIU on a schedular basis, the RO should adjudicate this issue in the first instance. Accordingly, the claims for entitlement to service connection for left shoulder disorder and entitlement to a TDIU are REMANDED for the following action: 1. Obtain a new medical opinion from a VA physician as to the etiology of the Veteran's left shoulder disorder. The physician should review the claims file prior to offering the opinion. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's left shoulder disability is either a) caused or b) aggravated by either his service-connected lumbar spine disability, his service-connected cervical spine disability, or a combination of the two. A complete rationale should accompany any opinion provided. 2. Readjudicate the claim for entitlement to service connection for a left shoulder disability. 3. For any time period during which the Veteran does not meet the schedular standards for consideration of a TDIU, REFER the claim to the Director of Compensation for consideration of a TDIU on an extra-schedular basis. 4. Readjudicate the claim for a TDIU. 5. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs