Citation Nr: 1317181 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-03 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. 3. Entitlement to a rating in excess of 50 percent for dysthymia/major depressive disorder. 4. Entitlement to a rating in excess of 10 percent for lumbar back strain prior to November 9, 2012, and in excess of 20 percent, effective November 9, 2012. 5. Entitlement to service connection for cervical spine disability. 6. Entitlement to service connection for a thoracic spine disability. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from May 1965 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a September 2009 rating decision, the RO granted service connection for left and right lower extremity radiculopathy, and assigned each a 10 percent rating, effective June 29, 2009. The RO also continued a 50 percent rating for dysthymia and a 10 percent rating for lumbar back strain. The RO denied service connection for arthritis of the cervical and thoracic spine in December 2009. The Board remanded this claim for additional development in October 2012, specifically so that VA examinations could be provided addressing the present severity of the lumbar spine, radiculopathy, and dysthymia disabilities, and an opinion could be provided regarding the service connection claim for disabilities of the cervical and thoracic spine. The Board also requested that a supplemental statement of the case be issued addressing newly submitted evidence. The development directed in the Board's remand has been accomplished. The case is now ready for appellate review. In December 2012, the RO granted an increased rating of 20 percent for the lumbar spine disability, effective November 9, 2012, the date of the VA examination provided. The Veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for a thoracic spine disability (to include arthritis) is addressed in the REMAND portion of the decision below and is REMANDED to the VA Regional Office. FINDINGS OF FACT 1. Prior to November 9, 2012, the Veteran's lumbar spine disability is manifested by forward flexion to 80 degrees, with no muscle spasm, localized tenderness or guarding severe enough to be responsible for an abnormal gait or abnormal spinal contour. 2. Effective November 9, 2012, the Veteran's lumbar spine disability is manifested by forward flexion to 60 degrees with no ankylosis. 3. The Veteran's lumbar spine is associated with mild radiculopathy of the bilateral lower extremities manifested by subjective complaints of numbness in the toes, and objective findings of no more than mild decreased sensation to pinprick in the lower extremities. 4. The Veteran's dysthymia disorder/ major depressive disorder results in occupational and social impairment with reduced reliability and productive, and continued depression symptoms, including depressed and anxious mood, social withdrawal, flattened affect, sleep impairment, irritability, problems concentrating, and slow psychomotor behavior. 5. The competent and probative evidence of record shows that the Veteran does not have a current cervical spine disability (to include arthritis) which is related to his service-connected lumbar spine disability with radiculopathy, or any event or injury in service, or that any cervical spine disability had its onset in service or within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent prior to November 9, 2012, and higher than 20 percent, effective November 9, 2012, for the service-connected lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5237 (2012). 2. The criteria for a rating higher than 10 percent for radiculopathy of the left lower extremity, secondary to the service-connected lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520 (2012). 3. The criteria for a rating higher than 10 percent for radiculopathy of the right lower extremity, secondary to the service-connected lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520 (2012). 4. The criteria for a rating higher than 50 percent for dysthymia disorder/major depressive disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2012). 5. The criteria for service connection for a cervical spine disorder (to include arthritis) have not been met. 38 U.S.C.A. § 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). RO letters dated in August 2009 and October 2009 and March 2006 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that worsening of his lumbar spine disability with radiculopathy had on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The letters also provided the Veteran with information on how VA determines and assigns effective dates. The letters did not include the criteria for substantiating a service connection claim on a secondary basis; however, the Veteran has demonstrated that he understands the nature of this claim by his assertions he has made with respect to his cervical spine disability being caused by his lumbar spine disability. As such, to the extent that there is any notice error, the Veteran has not been prejudiced. Regarding the duty to assist, the RO has obtained the Veteran's service records and VA treatment records. The RO also has provided him with VA examinations in August and November 2009 and November 2012. All relevant records have been added to the file and considered in the below determination. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Ratings Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The record reflects that the Veteran's lumbar spine disability has been assigned staged ratings of 10 and 20 percent. However, as discussed below, in this case, the record reflects that the Veteran's radiculopathy disability and dysthymia/ major depression have remained constant with respect to the applicable schedular criteria. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers 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 gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). A. Increased Rating for Lumbar Spine with Radiculopathy The RO originally granted service connection for chronic low back pain in a July 1999 rating decision assigning a 10 percent rating from October 5, 1998. The Veteran appealed this rating to the Board, which denied entitlement to a rating higher than 10 percent for the low back disability in a March 2003 Board decision. The Veteran filed an increased rating claim for his lumbar spine disability in June 2009. He also sought service connection for radiculopathy symptoms of the bilateral lower extremities secondary to his lumbar spine disability, including numbness in his toes. The RO granted service connection for bilateral lower extremity radiculopathy in a September 2009 rating decision assigning each lower extremity a 10 percent rating, effective June 29, 2009. However, the RO denied a rating higher than 10 percent for the lumbar spine disability. The Veteran appealed the ratings assigned contending entitlement to higher ratings for his lumbar spine and radiculopathy disabilities. Thereafter, the RO granted an increased rating of 20 percent for the lumbar spine disability in December 2012, effective November 9, 2012. The Veteran has not indicated that he is satisfied with the rating for his lumbar spine disability. The Veteran's lumbar spine is rated under 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain. Under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 warrants a 20 percent disability rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, DC 5237 (2012). Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal flexion of the thoracolumbar is zero to 90 degrees, extension is 0 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. Intervertebral disc syndrome should be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As noted above, in order to get the next higher 20 percent rating under the general rating formula for the spine prior to November 9, 2012, the evidence must show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. See 38 C.F.R. § 4.71a, DC 5237. An August 2009 VA examination report shows that forward flexion was to 80 degrees, with a combined range of motion of 190 degrees. There was no objective evidence of pain following repetitive motion or additional limitations. The examination report also mentioned that there was no muscle spasm, localized tenderness or guarding severe enough to be responsible for an abnormal gait or abnormal spinal contour. Based on these findings entitlement to a rating higher than 20 percent would not be warranted under DC 5237. This is the only medical evidence addressing the lumbar spine disability prior to November 9, 2012. On November 9, 2012, the Veteran underwent another VA examination. The RO granted an increased rating of 20 percent based on this examination. As noted, in order to get the next higher 40 percent rating under the general rating formula for the spine, the evidence must show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5237. The November 2012 VA examination report shows forward flexion was to 60 degrees, with painful motion beginning at 60 degrees. After repetitive use testing with three repetitions, forward flexion was still to 60 degrees; thus, the examiner determined that the Veteran did not have additional limitation of motion after repetitive-use testing. There was a scoliosis deformity, but no ankylosis noted on examination. There was guarding and/or muscle spasm present, but it did not result in abnormal gait or spinal contour. Based on these findings, a rating higher than 20 percent is not warranted under the general rating formula for the spine, effective November 9, 2012. The medical evidence also does not demonstrate that higher ratings would apply under 38 C.F.R. § 4.71a, DC 5243 for intervertebral disc disease, based on incapacitating episodes. The medical evidence does not actually show any diagnosis of intervertebral disc syndrome; nor does the medical evidence show incapacitating episodes, as contemplated by the diagnostic criteria, that have lasted for at least one week. The August 2009 VA examination report noted no incapacitating episodes related to the lumbar spine disability. The November 2012 VA examination report also specifically noted that the Veteran did not have intervertebral disc syndrome. Based on these findings, a rating higher than 10 percent prior to November 9, 2012, or higher than 20 percent, effective November 9, 2012 is not warranted under 38 C.F.R. § 4.71a, DC 5243. As previously noted, under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 68 Fed. Reg. 51,456 (2003) (now codified at 38 C.F.R. § 4.71a, DC 5243 (2012)(Note (1)). The Veteran's radiculopathy of the left and right lower extremities is presently rated as 10 percent disabling, each from June 29, 2009, under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 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. Another potentially applicable diagnostic code is Diagnostic Code 8521, which provides the rating criteria for paralysis of the external popliteal nerve (common peroneal), and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the external popliteal nerve, which is rated as 40 percent disabling, contemplates foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Id. Disability ratings of 10 percent, 20 percent and 30 percent are assignable for incomplete paralysis which is mild, moderate or severe in degree, respectively. 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. An August 2009 VA examination report shows the Veteran complained of numbness in his bilateral toes, specifically the 4th and 5th digits. Strength in the muscles of the major flexor and extenders was at a 5; the peroneal, tibial, sural, and femoral nerves were all affected. Reflex examination of the ankles and knees was 2+. There was no muscle atrophy present, abnormal muscle tone or bulk, tremors, tics, or other abnormal movements; nor was there any function of joint affected by the nerve disorder. The Veteran's gait and balance also were normal. Electromyographic testing was not performed. Sensory examination showed vibrating and pain to pinprick was 2 out of 2 in the lower extremities; light touch was 1 out of 2. Position sense was 2 out of 2. Reflex examination in the knees, ankles, and plantar (Babinski) was normal. The diagnosis was bilateral lower extremity radiculopathy to include paresthesias and numbness in toes. The etiology of the disorder was the spine condition. There was neuritis and neuralgia, but no paralysis. A November 2009 VA examination reported noted a slow, antalgic gait and the Veteran's complaints of numbness in the lower extremities. A November 2012 VA examination report shows normal muscle strength in the hips, knees, and ankles. He had no muscle atrophy. Reflex examination in the ankles and knees also was normal. There was decreased sensation to light touch in the thigh/knee, lower leg ankle, and foot/toes on both sides. There also was mild numbness in the bilateral lower extremities. The nerve roots involved were the sciatic nerves. The severity of the radiculopathy was mild. The Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine condition. Straight leg testing was negative. The Board finds that the Veteran's radiculopathy of both lower extremities associated with his lumbar spine disability should not be rated higher than 10 percent disabling for each extremity. Moreover, the Board determines that the diagnostic code that should be used is Diagnostic Code 8520 (for the sciatic nerve, versus Diagnostic Code 8521 for the external popliteal nerve), as there is a potential for a higher maximum rating under Diagnostic Code 8520, and the medical evidence indicates involvement of both the sciatic nerves and the peroneal nerves. The record shows the Veteran's complaints of numbness in the toes and objective findings of mild decreased sensation in the lower extremities to pinprick. These findings demonstrate, at most, mild impairment in the lower extremities due to radiculopathy under Diagnostic Code 8520. Moderate impairment is not shown, as the Veteran's impairment is primarily subjective. Although it was noted that the Veteran had a slow, antalgic gait in November 2009, muscle testing and reflex examination in the lower extremities was found to be normal. Thus, the record shows that two separate 10 percent ratings, but not higher, are warranted for radiculopathy of the bilateral lower extremities associated with the lumbar spine disability, effective June 29, 2009, the date of the Veteran's claim. The record also shows findings of erectile dysfunction, which could potentially be associated with neurological impairment associated with the lumbar spine disability. However, the Veteran is already receiving special monthly compensation for anatomical loss of a creative organ from November 11, 2000. Therefore, the erectile dysfunction cannot be rated separately as it pertains to the lumbar spine disability. See 38 C.F.R. § 4.14. No additional compensation for functional loss resulting from factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. 202, 204-07 (1995) is warranted, as this impairment has been addressed by the 10 and 20 percent ratings for the lumbar spine and the two separate 10 percent ratings assigned for radiculopathy of the bilateral lower extremities. The Veteran genuinely believes that he is entitled to an increased rating for his lumbar spine disability and radiculopathy of the lower extremities. His factual recitation as to symptomatology associated with the lumbar spine and radiculopathy is accepted as true. Specifically he has described constant low back pain rated as a 3 out of 10 with exacerbations of pain from prolonged sitting or standing. He also described numbness in the toes that is present almost all the time. He further noted that he cannot stand for more than half an hour before wanting to sit down because of back pain. The Veteran's lay statements have been considered in assigning the ratings on appeal. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his lumbar spine disability or radiculopathy of this lower extremities, and his views are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's spine and discussed all relevant details for purposes of rating his disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For all the foregoing reasons, the Board finds that ratings higher than 10 percent prior to November 9, 2012, or higher than 20 percent effective November 9, 2012 for the lumbar spine; or higher than 10 percent each for the radiculopathy of the bilateral lower extremities are not warranted. Therefore, entitlement to an increased ratings for the lumbar spine and radiculopathy of the lower extremities is denied. B. Increased Rating for Dysthymia Disorder The RO originally granted service connection for dysthymia in a November 2001 rating decision, assigning a 30 percent rating, effective January 3, 1997. The Veteran appealed this rating to the Board, which granted an increased rating of 50 percent for dysthymia in a March 2003 Board decision. The RO later assigned an effective date of January 3, 1997 for the 50 percent rating for dysthymia. The Veteran filed his present increased rating claim for dysthymia in June 2009. The criteria for evaluating dysthymia are found at 38 C.F.R. § 4.130, Diagnostic Code 9433; however, the Veteran's psychiatric disability is rated under Diagnostic Code 9434 for major depressive disorder. The criteria for rating these disabilities are the same. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). The record reveals that the Veteran has received fairly regular treatment for his dysthymia from the Omaha VA Medical Center (VAMC). Reports from these visits from 2008 to 2011 reveal that the Veteran's dysthymia symptoms include occasional anxious mood, depressed mood, and constricted affect. In June 2010, his motor behavior was noted as retarded/slow; but other treatment records reflect normal motor behavior. His grooming and hygiene were reported as good. The treatment records reflect that his GAF score range was from 52 to 62, with most of his scores falling in the 50 range. The Veteran reportedly stopped working due to service-connected disabilities on July 11, 2009, and is in receipt of a total disability rating based on individual unemployability as of July 11, 2009. An August 2009 VA examination report notes that the Veteran had been married for the past 13 years. He also had two children from a prior relationship. He described his relationship with his wife, children, and grandchildren as "pretty good." He also indicated that he had one friend with whom he would have coffee a few times a week. For activities he enjoyed working around his yard and carpentry work. He had a previous suicide attempt in 1987 and received inpatient treatment. There was no history of violence. He reported that he was in the process of getting ready for an auction for his wife's mother's estate and had lost 15 pounds over the past two months as he had been very active since retirement. His sleep was mediocre. He was able to fall asleep but had trouble staying asleep and was usually up a few times a night. He averaged six hours of sleep a night. His mood was pervasively dysthymic; concentration was fair. On psychiatric examination his appearance was neat and clean. His psychomotor activity was tense and his speech was hesitant. He was cooperative, attentive, and irritable toward the examiner. He had no delusions and his thought process and content was unremarkable. He denied hallucinations, obsessive or ritualistic behavior, panic attacks, or suicidal or homicidal thoughts. He had good impulse control and was able to maintain minimum personal hygiene. He engaged in moderate exercise. His memory was normal. It was noted that February 2009 neuropsychological testing showed dysthymia with a GAF score of 55. It also was noted at that time that the Veteran did not appear to have any significant impairment of his cognitive functions, which required intervention. He had moderate depression, sadness, loss of pleasure, guilty feelings, self-dislike, loss of energy, and changes in sleep pattern. He also had irritability and concentration difficulty. The August 2009 examination report noted that the Veteran was not working due to retirement in June 2009. It was further noted that the Veteran's dysthymia had essentially remained the same since his last examination. The GAF score assigned was 56. The examiner determined that the Veteran's dysthymia was such that there would be moderate level of impairment with productivity. There was not total social and occupational impairment. A November 2012 VA examination report shows the Veteran had an Axis I diagnosis of major depression with recurrent anxiety, which was an extension and update of the dysthymia mood disorder previously diagnosed in 2009. He met the criteria for moderate to severe major depression with anxiety. His symptoms included depressed mood, loss of pleasure, social withdrawal, irritability, energy loss, negative thought content, loss of concentration, significantly lowered psychomotor activity, and constricted spontaneity. He also indicated that he was not able to sleep, but was not suicidal. Also present were almost continuous intrusive worries about random topics, intrusive pessimism, and brooding about worst case scenarios with money, family, weather, etc. His GAF score was 45. The examiner commented that the Veteran was in significant distress from the effects of major depression with anxious features. His functional impairment included problems with concentration, socialization, recreation, and motivation. His subjective distress was significant, as well. The examiner also noted that the Veteran's level of occupational and social functioning was best described as having reduced reliability and productivity. It was noted that there were no other mental disorder diagnoses. For the Veteran's social history, the examiner directed the reader to the previous examination in 2009. For employment history it was noted that he retired in 2009 from being an electrician. Now he liked to work on computers and do lawn work, but he spent little time outside his home or socializing. He was presently getting counseling and medication for depression. He described his level of depression as about the same as three years ago; he indicated that he did not feel like doing much, just sat around, and escaped by sleeping; he did not have any fun. He noted that he could not concentrate and did not feel like socializing; he did not visit friends much. The Veteran presented as downcast, with a soft voice, fair eye contact, minimal verbalization, constricted spontaneity, and depressed demeanor. There was no evidence of psychosis or suicidality. Symptoms associated with the Veteran's mental health disability included depressed mood, anxiety, and flattened affect. There were no other symptoms attributable to his mental disorder that were not listed. On review of the medical findings, the Board determines that the next higher 70 percent rating is not warranted for the dysthymia disorder/ major depressive disorder. While the Veteran does have occupational and social impairment, he does not have occupational and social impairment with deficiencies in most areas. With respect to his occupation, the record shows that the Veteran reportedly retired in 2009 and continued to work on computers. While the Veteran is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities, the record does not demonstrate that this is solely a result of his psychiatric disorder. The November 2012 examiner commented that the Veteran had moderate to severe major depression with anxiety, but this does not translate into severe occupational impairment, as the examiner also found that the Veteran had reduced reliability and decreased ability to concentrate, which is more consistent with moderate criteria listed for a 50 percent rating. Socially, he was noted to have become more and more socially withdrawn. However, he also has a long-term relationship with his wife and a "pretty good" relationship with his children and grandchildren. He has a friend he meets with a few times a week, and was active physically having lost 15 pounds over a few months since retirement. Although he did not get out much he still enjoyed working around the house and doing carpentry work. Therefore, even though the Veteran has social impairment, it is not shown to be severe enough to warrant a 70 percent rating. The Veteran's occupational and social impairment does not show that it results in deficiencies in most areas of his life. It is also significant that he does not have any of the diagnostic criteria mentioned for a 70 percent rating or 100 percent rating. The Veteran's GAF scores primarily fall in the moderate range as well, in the 50s. His GAF score of 45 in November 2012 indicates more serious symptoms and the examiner described moderate to severe major depression with anxiety. However, again, the examiner also determined that the Veteran's symptoms were more closely described as occupational and social impairment with reduced reliability and productive, which is more consistent the criteria for a 50 percent rating. Even with medication, the Veteran continued to struggle with his ongoing depression symptoms, which included depressed and anxious mood, social withdrawal, flattened affect, sleep impairment, irritability, problems concentrating, and slow psychomotor behavior. While the Veteran has significant impairment related to his PTSD symptoms, it does not rise to the level of a 70 percent rating. For all the foregoing reasons, the Board finds that the evidence does not support the assignment of a rating in excess of 50 percent for dysthymia disorder. Therefore, entitlement to an increased rating for the impairment associated with dysthymia disorder is not warranted. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. To the extent that the Veteran has contended that his dysthymia disorder is more severely impaired than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Extraschedular Ratings The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2011). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's the lumbar spine disability with radiculopathy (i.e., limited, painful motion, and decreased sensation into the lower extremities) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 10 and 20 percent ratings assigned under DC 5237 contemplates symptoms such as limitation of motion in the spine due to pain; and the two separate 10 percent ratings under DC 8520 contemplates mild neurological impairment from the sciatic nerve. The symptoms associated with the Veteran's dysthymia/ major depression (i.e., depressed and anxious mood, social withdrawal, flattened affect, sleep impairment, irritability, problems concentrating, and slow psychomotor behavior) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 50 percent rating assigned under DC 9434 contemplates symptoms such as occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbance of motivation and mood, and difficultly in establishing and maintaining effective work and social relationships, and the Board finds that these rating criteria reasonably describe the Veteran's disability. Thus, the Board finds that these rating criteria reasonably describe the Veteran's disabilities. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. IV. Service Connection for Cervical Spine Disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303. Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is listed as chronic conditions under 38 C.F.R. § 3.309(a). Therefore, any arthritis of the cervical spine for the Veteran can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, arthritis of the cervical spine may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of aggravation of a nonservice-connected disorder by a service-connected disability. See 38 C.F.R. § 3.310(b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The Veteran is currently diagnosed with degenerative changes of the cervical spine. A November 2009 VA general examination report shows multi-level degenerative cervical spondylosis with multi-level mild to moderate neural foraminal stenosis; mild compression deformities of C6 and C7; and mild curvature of the cervical spine, underlying thoracic scoliosis versus positioning. A March 2010 VA treatment record also shows multi-level degenerative changes in a mild to moderate amount from C4 to C7 with moderate left and mild right foraminal stenosis at these levels. Service treatment records reflect findings of old Scheuermann's disease of the thoracic spine; and as noted above, the Veteran is service-connected for lumbar back strain and radiculopathy of the bilateral lower extremities A November 2012 VA examination report was provided to determine whether there was any relationship between the Veteran's cervical spine disability and service and/or his service-connected lumbar spine disability with radiculopathy. The report shows the Veteran reported arthritis of his neck for three years. He felt that it was from his back as he reported that his spine is "twisted." After physically examining the Veteran the diagnosis was multilevel degenerative spondylosis, most pronounced at C6-C7. After reviewing the claims file and examining the Veteran, the examiner determined that the Veteran's cervical spine condition was less likely than not etiologically related to service. The examiner indicated review of the August 1965 service treatment record noting an evaluation for tenderness of the T12-L1 and x-ray evidence of old Scheuermann's disease, T-8 through T-11. The examiner noted that kyphosis or Scheuermann's disease was a curving of the spine that caused a bowing or rounding of the back, which led to hunchback or slouching posture. The examiner determined that this condition did not develop acutely. The examiner also determined that after review of the claims file and examination of the Veteran that it was his opinion that the Veteran's cervical spine was less likely than not proximately due to or aggravated by his lumbar strain. The rationale was that the Veteran reported no procedures on the lower back, nor chiropractic care, no injections, and no history of surgery. X-rays of the lumbar spine demonstrated mild multilevel degenerative spondylosis. He also reported working as an electrician for 40 years. He reported focal neck discomfort, which was likely due to static and dynamic use of the neck. Therefore, in the examiner's opinion the available evidence did not support the Veteran's claim. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran does not have a current cervical spine disability related to his service-connected lumbar spine with radiculopathy disability or any event in service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between any current neck disorder and his service-connected lumbar spine disability are the Veteran's assertions. The Board acknowledges that the Veteran is competent to report that he has continued to experience symptoms in his neck, but he only indicated symptoms for the past three years. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The medical records show that the Veteran was not treated for any cervical spine impairment from 1968 to 2009. He was seen multiple times for orthopedic complaints on VA treatment records dated from 1968 to 2009, but never once mentioned any problem with his neck. In November 2012, he specifically mentioned that he had only had neck arthritis for the past three years. Therefore, the Veteran's statements concerning his neck weigh against his claim. As the first finding of arthritis in the cervical spine was not until many years after discharge, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. Also, the Veteran has submitted no competent medical evidence or opinion to corroborate his contentions that he has had neck symptoms for three years, which are related to his service-connected lumbar spine disability with radiculopathy. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinions are insufficient to provide the requisite nexus between his back disability and any current neck disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any neck disorder is merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. The Board finds the VA examination report in November 2012 to be more probative as to the etiology of any current cervical spine disorder. The examiner reviewed the claims file and examined the Veteran and found that his current cervical spine disability was not related to his service-connected back disability or service. After reviewing the claims file and examining the Veteran, the examiner determined that the Veteran's cervical spine condition was less likely than not etiologically related to service. The examiner indicated review of the August 1965 service treatment record noting x-ray evidence of old Scheuermann's disease, T-8 through T-11, which was not a condition that developed acutely. The service treatment records also are negative for any impairment associated with the cervical spine. The examiner also determined that after review of the claims file and examination of the Veteran that it was his opinion that the Veteran's cervical spine was less likely than not proximately due to or aggravated by his lumbar strain, as the Veteran reported no procedures on the lower back, nor chiropractic care, no injections, and no history of surgery; and x-rays of the lumbar spine demonstrated only mild multilevel degenerative spondylosis. The examiner also noted that the Veteran reported working as an electrician for 40 years and reported focal neck discomfort, which was likely due to static and dynamic use of the neck. There are no other medical opinions of record addressing the etiology of any present cervical spine disorder. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has a cervical spine disability that is related to any service-connected lumbar spine disability with radiculopathy, or any in-service disease, event, or injury. Accordingly, the Board finds that the criteria for service connection for a cervical spine disability are not met and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) ORDER Entitlement to a rating in excess of 10 percent for lumbar back strain prior to November 9, 2012, and in excess of 20 percent, effective November 9, 2012 is denied. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to a rating in excess of 50 percent for dysthymia/major depressive disorder is denied. Entitlement to service connection a cervical spine disability, to include arthritis, is denied. REMAND The Veteran is currently diagnosed with degenerative changes of the thoracic spine. A November 2009 VA general examination report shows underlying thoracic scoliosis versus positioning. An August 2011 VA x-ray examination also shows mild kyphosis and mild wedging of several of the midthoracic vertebral bodies and diffuse degenerative changes of the thoracic spine. Service treatment records reflect findings of old Scheuermann's disease of the thoracic spine. A VA examiner in November 2012 determined that the Veteran's thoracic spine condition was less likely than not etiologically related to service. The examiner indicated review of the August 1965 service treatment record noting an evaluation for tenderness of the T12-L1 and x-ray evidence of old Scheuermann's disease, T-8 through T-11. The examiner noted that kyphosis or Scheuermann's disease was a curving of the spine that caused a bowing or rounding of the back, which led to hunchback or slouching posture. The examiner determined that this condition did not develop acutely and the Veteran reported no present thoracic discomfort. After physically examining the Veteran in November 2012, the diagnosis was kyphosis, Scheuermann's disease, and scoliosis of the thoracic spine. The record shows a diagnosis of kyphosis or Scheuermann's disease of the thoracic spine both in service and after service, which would indicate significant evidence in favor of a finding of service connection for this disorder, notwithstanding the medical opinion of record. However, in this case, it is not clear if kyphosis or Scheuermann's disease is a congenital disorder. If kyphosis is a congenital disorder, other criteria apply. Congenital or developmental defects are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. § 3.303(c), 4.9. However, if the congenital or development defect was subject to superimposed injury or disease, the resultant disability might be service-connected. VAOPGCPREC 82-90 (July 18, 1990). A congenital disease (as opposed to a defect) can be granted service connection if manifestations of the disease in service constitute aggravation of the condition. Id. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. Id. As it is unclear if the Veteran's thoracic spine disability is a congenital disorder, the Board determines that remand is warranted to clarify the thoracic spine diagnosis. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an orthopedic doctor. The claims file must be made available to, and reviewed by, the doctor. All appropriate testing should be conducted. The doctor should identify all current orthopedic disorders found to be present in the thoracic spine, i.e., kyphosis, wedging of several of the midthoracic vertebral bodies, degenerative changes, etc. The doctor also should provide an opinion as to the following: (a) Is the kyphosis deformity congenital or acquired in nature? If congenital, the doctor must also state whether this condition is a disease, as opposed to a defect. (b) If the kyphosis deformity is a congenital disease, the doctor should state whether it underwent a permanent increase in severity during active service. If so, was the increase in severity beyond the natural progress of the condition? (c) If the Veteran's kyphosis is more properly characterized as a congenital defect, the doctor should state whether it was subject to any superimposed disease or injury during active service. (d) The doctor should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current thoracic spine disorder, including arthritis, had its clinical onset during active service, is related to any in-service disease, event, or injury, or was caused or aggravated by a service-connected lumbar spine disability. Please provide a complete rationale for your opinions. If you cannot answer the above questions without resorting to speculation or remote possibility, please indicate why that is so. 2. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 3. Finally, readjudicate the remaining claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs