Citation Nr: 1317339 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 06-32 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral leg/foot disability, to include as secondary to cervical spine disability. 2. Entitlement to service connection for a left arm/shoulder disability, to include as secondary to cervical spine disability. 3. Entitlement to an initial rating in excess of 10 percent for cervical spine disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2004 and March 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The August 2004 rating decision granted service connection for a cervical spine disability (claimed as neck injury). A 10 percent rating was assigned, effective August 17, 1998. The Veteran appealed the initial rating assigned. The March 2006 rating decision denied service connection for a bilateral leg/foot disability and denied reopening of the claim for service connection for a left arm/shoulder disability. In November 2009, the issue of entitlement to service connection for a left arm/shoulder disability was reopened by the Board, and the merits of all four issues currently on appeal were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The issues were again remanded for further development in September 2011. Considered in the September 2011 remand was the issue of service connection for depression; however, in a September 2012 rating decision, service connection for dysthymia (depression) was granted in full. Therefore the issue is no longer before the Board. A TDIU claim is part of an increased rating claim when it is raised by the record. Rice v. Shinseki 22 Vet. App. 447 (2009). For reasons discussed at greater length in the remand below, entitlement to TDIU has been raised by the record, and is added to the issue section above. The issue of entitlement to service connection for a bilateral leg/foot disability, to include as secondary to cervical spine disability, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving the benefit of the doubt in the Veteran's favor, a left arm/shoulder disability is related to service. 2. Throughout the appeal, the Veteran's service-connected cervical spine disability has been manifested by flexion between 35 and 45 degrees, and a combined range of motion of the cervical spine of 235 degrees, without abnormal spinal contour or muscle spasm or guarding which results in abnormal gait. CONCLUSIONS OF LAW 1. The criteria for service connection for a left arm or shoulder disorder have been met. §§ 101(24), 106, 1110, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.304 (2012). 2. The criteria for an increased disability rating in excess of 10 percent for cervical spine disability have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, a VCAA notice letter sent in November 2006 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. In April 2000, September 2001, March 2005, May 2005, January 2006, March 2010, December 2010 and January 2011, the RO provided the Veteran with VA spine and shoulder examinations, and obtained opinions to assist in determining the extent of the Veteran's low back and shoulder disability. The VA examinations are adequate for VA purposes, and there is no duty to provide an additional examination or medical opinion for this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, statements from the Veteran and his representative, Social Security Administration (SSA) disability records, private treatment records, and VA treatment records. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Several legal theories of entitlement to service connection operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which includes arthritis and organic diseases of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis or organic diseases of the nervous system may also be presumed to have been incurred during active military service if it becomes manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d at 1377. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, the Veteran as a lay person is competent to offer an opinion on a simple medical condition like a broken arm or dislocated shoulder, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, supra. When the competent lay or medical evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Left Arm/Shoulder Disability The Veteran's service medical records show that in September 1965, he received numerous lacerations to his head, neck, back, and abdomen, after being assaulted with a broken beer bottle. Specifically noted was a six inch laceration of the left side of the neck, extending from the midline posteriorly to the anterior surface of the sternocleidomastoid muscle anteriorly. This wound was noted to be approximately 1 inch deep extending through the skin, subcutaneous tissue, fat, and some muscle components but involving no vital structure. Service medical records dated February 1966 indicate that the Veteran was noted to have reported falling off a ladder, and had a 1/8 to 1/4 inch laceration on the back of his head. The examiner indicated that he was unable to tell whether the Veteran had a concussion or not, as the Veteran had been drinking, and the Veteran was instructed to come back for treatment in the morning. There is no record of additional treatment. The Veteran's claims file includes a letter from Captain W.R. to the Veteran's mother which noted that on September 18, 1965, the Veteran was injured and sustained a laceration to the neck and back, it was noted that the medical officer was pleased with the Veteran's condition and that there was no permanent injury. A December 1966 VA examination noted that the Veteran had two scars in the right upper quadrant which were healed without significant residual abnormality. In a November 1971 VA hospital note, it was noted that the Veteran complained of some discomfort in the scar areas with cold weather. Following physical examination it was noted that the Veteran had no demonstrable functional abnormality of any of the joints and that he had no residual abnormalities of his scars. The post-service medical records reveal that a February 1977 VA treatment record noted complaints of left shoulder pain. X-ray studies revealed deformity of the lateral end of the left clavicle, which was thought to be the result of old trauma. The post-service medical evidence also documents complaints of left shoulder pain in December 1977. The medical record is largely illegible but seems to state that range of motion of the left shoulder was within normal limits. X-ray studies were consistent with trauma to the left AC joint. Deformity of the left clavicle was noted. The Veteran was referred to orthopedics. It was noted that the Veteran had pain in his shoulder for approximately one month. A March 1985 VA treatment record notes complaints of left shoulder pain. It was noted to possibly be muscular, but there were no signs of nerve impingement. A second March 1985 VA treatment note reported that the Veteran did heavy labor. Range of motion and neurologic findings were normal. A January 1999 VA treatment report notes extensive joint and facet joint arthropathy of the C5-C6 encroaching on the neural foramina and lateral recesses. A February 1999 VA treatment record notes complaints of neck pain which radiated down the left arm. In an August 1999 statement the Veteran described a constant pain in his neck which ran down his left arm and caused a partial loss of strength. A February 2000 report from VA physician Dr. R.L noted that the Veteran's examination of the upper extremities demonstrated full range of motion with no weakness. He stated that there was no radioculopathy but there was sensory nerve injury secondary to the laceration. At his March 2000 Decision Review Officer hearing, the Veteran explained that he had weakness in his left arm and radiation of pain. The Veteran explained that his left arm didn't hurt at the time of discharge. In an April 2000 letter from VA physician, L.V., it was reported that the Veteran has had chronic pain in the left arm and neck since 1965, associated with decreased strength in the left arm. The Veteran was noted to have a large scar from the posterior neck to below and behind the left ear. There was full range of motion of the upper extremities. Biceps, triceps, and brachioradialis reflexes were 3+. No weakness was noted except decreased triceps grip on the left. The examiner noted that EMG studies were compatible with a left ulnar compression neuropathy at the elbow. There was also a small disc herniation at C5-C6, and extensive arthropathy with osteophytes formation. Dr. L.V. indicated that there was no radiculopathy, but rather sensory nerve injury secondary to an old laceration injury of 1965. The Veteran testified before a Decision Review Officer in May 2000. The Veteran at that time again indicated that it was his belief that he currently had a neck disability related to service, specifically related to a fall down a ladder, a neck laceration, falling off of a wing of a plane, and frequently hitting his head on hatches. In a July 2000 statement, the Veteran explained that he was told by a doctor in 1966 that he had nerve damage which would increase in severity with time and that the nerve damage was consistent with the scars on his neck. The report of a September 2001 VA examination noted that there were no reflex, sensory, or motor deficits in the upper extremity and there was no weakness or atrophy in the upper extremities. In a June 2003 statement, the Veteran reported that he had pain in his left shoulder and arm since his separation from service. A March 2005 VA examination report noted that the left arm and left hand condition was not secondary to his cervical spine arthritis. The examiner opined that the subjective symptoms are greater than the objective findings. A cervical magnetic resonance imaging (MRI) was suggested, as well as a full work up to determine the cause of the severe pain. X-ray studies revealed mild degenerative joint disease of the left shoulder. In May 2005, the Veteran submitted internet articles which discussed trauma to the spine as well as nerve damage. A January 2006 VA examination report notes that the Veteran complained of tingling in his hands, dysesthesia, and progressive weakness with use of the left upper extremity. He had weakness when lifting heavy objects and weakness as well as pins and needles when driving. There was no objective evidence of limitation of motion secondary to spasm, weakness, or tenderness. Sensation was intact throughout from C4-C5 through T1. His intrinsic and extrinsic muscle function was intact, although occasionally weaker with repeated use. The examiner stated, "I think that [the feeling of pins and needles] is secondary to his peripheral neuropathy secondary to his diabetes." A May 2006 letter from the Veteran's treating VA physician notes that the Veteran has cervical spine disease caused him to have severe pain in his neck and shoulder, with radiating pain down his arms. The Veteran was afforded a VA examination in March 2010 wherein he stated that the onset of his left shoulder disorder was in the 1970s and that his symptoms were progressively worse. Following examination diagnoses of left shoulder degenerative joint disease and impingement syndrome were assigned. A VA medical opinion was submitted in January 2011 which stated that left shoulder degenerative arthritis and impingement syndrome were not caused by, a result of or aggravated by the Veteran's cervical spine condition. As the rationale for the opinion, the examiner stated that there was x-ray evidence that the degenerative disease and impingement syndrome were of a traumatic origin which was not caused by the cervical spine degenerative disease and that while cervical spine arthritis could cause pain radiating to the shoulder region there is no physipathological mechanism through which it could produce post-traumatic arthritis of the shoulder joints. The Veteran contends that he has a left arm and shoulder condition due to injuries sustained in service, or that his symptoms are secondary to his cervical spine disorder. The evidence of record creates a perplexing picture. Multiple in-service injuries are documented and the Veteran is shown to have sustained lacerations to the neck and a fall thereafter. Medical records following these injuries demonstrate that the Veteran had scarring without residuals, however 1977 findings include an old trauma to the clavicle and the Veteran claims that he has experienced shoulder pain since service. The evidence of record weighs against a finding that the Veteran's left shoulder symptoms are secondary to his cervical spine condition. Most conclusive on this matter are the findings of the January 2011 VA examiner who concluded that left shoulder degenerative arthritis and impingement syndrome was not caused by, a result of or aggravated by the Veteran's cervical spine condition stating that while the Veteran has degenerative disease and impingement syndrome of a traumatic origin which was not caused by the cervical spine degenerative disease and that while cervical spine arthritis could cause pain radiating to the shoulder region, there is no physipathological mechanism through which it could produce post traumatic arthritis of the shoulder joints. Whether the Veteran's neurological symptoms are related to his service, presents a is more difficult to determine. As noted above, some of the evidence of record demonstrates that the Veteran had no residuals of his in-service injuries and that his laceration injuries caused no additional symptoms. However, the Veteran is shown to have impingement syndrome by the March 2010 VA examiner and both VA physicians Dr. R.L. and Dr. L.V. have opined that while there was not radioculopathy, there was sensory nerve injury secondary to the Veteran's laceration injuries. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the evidence for and against the Veteran's claim is in equipoise. While there is some evidence demonstrating that the Veteran's 1965 laceration injury had healed, there is also competent medical evidence linking that laceration led to nerve damage in the Veteran's shoulder. Accordingly, giving the Veteran the benefit of the doubt, service connection for a left shoulder/left arm disorder is warranted. Cervical Spine A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rating a disability of the musculoskeletal system, the following factors are for consideration. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca at 206-07. Also with arthritis or periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's cervical spine disability is currently rated 10 percent under Diagnostic Code 5243. A disability of the cervical spine is rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating Intervertebral Disc Syndrome), whichever method results in the higher rating. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code depending on the particular nerve or nerve group that is affected. Note (1). Under the General Rating Formula, the criteria for a 10 percent rating are forward flexion of the cervical spine not greater than 40 degrees; or, where the combined range of motion of the cervical spine is not greater than 335 degrees; or, where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal spinal contour; or, a vertebral body fracture with loss of 50 percent or more of the height. The criteria for a 20 percent rating are forward flexion of the cervical spine not greater than 30 degrees; or, where the combined range of motion of the cervical spine not greater than 170 degrees; or, where there is muscle spasm or guarding severe enough to result in abnormal spinal contours. Forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent disability rating. Unfavorable ankylosis of the entire cervical spine warrants a 40 percent disability rating and unfavorable ankylosis of the entire spine warrants a 100 percent disability evaluation. The rating criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. For rating purposes, normal forward flexion of the cervical spine is 45 degrees, extension to 45 degrees, left and right lateral flexion to 45 degrees, and left and right lateral rotation to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. In rating peripheral nerves, the rating schedule provides ratings from 10 percent to 60 percent for the minor extremity, ranging from mild incomplete paralysis to complete paralysis of affected nerve. 38 C.F.R. § 4.124a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for a 10 rating are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. The criteria for a 20 rating are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note (1). The Veteran claims that he is entitled to a higher initial rating for his service-connected cervical spine disability because it is more severe than is reflected by the current 10 percent rating. A VA examination was conducted in April 2000. At that time it was reported that the Veteran had chronic pain in the left arm and neck since 1965, associated with decreased strength in the left arm. MRI of the cervical spine showed degenerative disc disease of the cervical spine, more advanced for the Veteran's age. There was also a small disc herniation at C5-C6, and extensive arthropathy with osteophytes formation. The examiner indicated that there was no radioculopathy, but rather sensory nerve injury secondary to an old laceration injury of 1965. The examiner further indicated that Veteran's cervical spine degenerative arthritis could be related to the Veteran's fall and neck injury of 1965 and 1966. The Veteran received a VA examination in September 2001 for his spine and neck. Examination revealed range of motion of the neck to be the following: 80 degrees right rotation; 60 degrees left rotation; 40 degrees of forward flexion; and 35 degrees of extension with pain. He had no reflex, sensory, or motor deficits in the upper extremity. There was no weakness or atrophy in the upper extremities. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine as indicated by an X-ray study of that area. In a March 2005 VA examination, the Veteran was shown to have forward flexion to 45 degrees, extension to 35 degrees, bilateral lateral flexion to 45 degrees and bilateral lateral rotation to 80 degrees. There were no periods of flare-ups reported. He stated that continued use increased pain but did not limit range of motion and repetitive use did not limit range of motion. The examiner noted that he did not feel that the Veteran had significant cervical degenerative arthritis and his subjective complaints were greater than his objective findings. In a January 2006 VA examination, the Veteran was ambulatory with normal gait, there were no definite flare-ups and no objective evidence of limitation of motion secondary to spasm, weakness or tenderness. There were no incapacitating episodes over the last two months. X-rays were found to demonstration of increase of cervical spine arthritis. In a May 2006 letter from VA physician Dr. S.R. to the Veteran's employer it was noted that the Veteran had cervical spine disease which caused severe pain in the neck and shoulder, as well as peripheral vascular disease of the lower extremities and diabetes. Dr. S.R. recommended reasonable accommodations at work due to these conditions and stated that without such accommodations, the Veteran might be required to take medical leave for time which may exceed one to two weeks. The Veteran was afforded a VA examination in March 2010. During his examination, the Veteran reported chronic neck pain which was stable. There was no history of hospitalization or surgery, there was no urinary or bowel symptoms reported. The Veteran reported numbness, parethesias, leg or foot weakness, but the examiner stated that these symptoms were secondary to diabetes mellitus and a vascular condition. The Veteran reported fatigue, decreased motion, stiffness, weakness, spasms and pain in the cervical pain which the Veteran described as constant and moderate. There were no flare-ups reported nor were there incapacitating episodes of spine disease. Physical examination revealed that the Veteran had a normal gait, and normal posture. There was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis or scoliosis. There was no spasm found nor was there atrophy, guarding or weakness. Objective pain with motion and tenderness were noted. Range of motion testing demonstrated flexion to 35 degrees and extension to 0 degrees, bilateral lateral flexion was from 0 to 40 degrees, lateral rotation was from 0 to 60 degrees bilaterally. There were no additional limitations after three repetitions on range of motion testing. X-ray images were shown to demonstrate osteoarthritic changes with osteophyte formation and narrowing of the disc spaces between the C4-C5 and C5-C6 vertebrae. It was noted that, at the time of the examination the Veteran was employed full time and that the Veteran's spine condition caused decreased mobility weakness or fatigue and pain. In an April 2011 addendum to the VA examination, following review of the claims file, a VA examiner stated that the Veteran's cervical condition did not render the Veteran fully unemployable. It was noted that the Veteran would not likely tolerate a physical job but could perform sedentary work. A review of the outpatient clinical records in the claims file reveals ongoing treatment for neck pain consistent with the examination reports described above. Upon review of the all of the evidence, the Board finds that the currently assigned 10 percent rating is warranted for the Veteran's cervical disability throughout the period on appeal. Here, physical examinations reveal that the Veteran's flexion has remained greater than 30 degrees, namely between 35 and 45 degrees. Further, his combined range of motion has remained greater than 170 degrees, namely at 235 degrees in March 2010. These measurements fall squarely below the levels of limitation required for the higher, 20 and 30 percent ratings. As he has motion in the cervical spine, there is no finding of ankylosis, sufficient to warrant the higher still ratings of 40 and 100 percent. Moreover, the record has not demonstrated muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, abnormal kyphosis or ankylosis. Records consistently report a normal gait without contour abnormality. With respect to neurological manifestations of the Veteran's cervical spine disability, the Board notes that his sole complaint has been referable to his left shoulder and arm, which he alternately attributed to his neck disability or his in-service laceration to the neck. As discussed fully above, medical examiners have specifically found that the symptoms he has in his arm are not attributable to the cervical spine. Rather, they are attributable to the laceration. Service connection is granted for the left arm above. Finally, at no time has intervertebral disc syndrome been shown to require between two and four weeks of prescribed bed rest. While Dr. S.R. notes that the Veteran may have needed to take time off in a May 2006 letter, this was related to all of his disabilities as a whole and at no time has the Veteran been prescribed bed rest by a physician due to his cervical spine disability. As the criteria for a rating in excess of 10 percent are not met, a disability rating in excess of 10 percent is warranted. While the Board has considered the decision in DeLuca v. Brown, supra, the evidence of record preponderates against finding that the Veteran has pain, fatigability, incoordination, and other such symptoms that are not contemplated by the current disability evaluations. Specifically, the record does not confirm functional loss which is supported by adequate pathology and actual additional limitation. Moreover, while the Veteran has complained of neck pain, as noted by the March 2005 VA examiner, his symptoms appear to be more significant than the objective pathology of his cervical spine disability would warrant. The Board has also considered whether staged ratings are for application. However, as the Veteran's cervical spine disability has remained relatively stable throughout the appeal period, staging is not required. In short, the preponderance of the evidence is found to be against the claim for an increased rating for the Veteran's cervical spine disorder; therefore, the benefit of the doubt doctrine does not apply. An increased rating is not warranted. Additional Considerations The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). In this case, the Veteran's main symptom referable to the neck disability is limitation of motion due to pain. The criteria underlying the currently assigned 10 percent rating specifically contemplate limitation of motion. Therefore, there is no evidence that the disability picture presented is not contemplated by the rating schedule. Further, the evidence does not show that the Veteran has presented such an exceptional disability picture so as to remove him from the rating schedule. There is no evidence of frequent hospitalization or significant absences from work due to the disability. Thus, the Board finds no evidence to indicate referral for extraschedular consideration. Id. ORDER Entitlement to service connection for a left arm/shoulder disability is granted. Entitlement to an initial rating in excess of 10 percent for cervical spine disability is denied. (CONTINUED ON NEXT PAGE) REMAND In September 2011, the Board remanded the issue of service connection for a bilateral leg/foot disability in part so that a VA examiner could provide a VA examination which addressed whether the Veteran's disability was aggravated by his service-connected cervical spine disability. In October 2011, a VA examiner reviewed the Veteran's claims file and determined that the Veteran's bilateral leg/foot disability was not caused by or a result of the Veteran's service-connected cervical spine disability. That examiner did not address the issue, however, as to whether his cervical spine disorder aggravated his non-service connected leg/foot disorder. The United States Court of Appeals for Veterans Claims has held that the Board is obligated by law to ensure that the RO complies with its directives; and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, a new VA opinion must be obtained. Further, a TDIU claim is part of an increased rating claim when it is raised by the record. Rice v. Shinseki 22 Vet. App. 447 (2009). On multiple occasions, the Veteran has suggested that his cervical spine conditions rendered him less able to work and in a February 2010 statement the Veteran stated that because his office refused to give him reasonable accommodation for his disability he would have to retire. Of note, in an April 2011 addendum to a VA examination, the examiner found that the Veteran's cervical condition did not render the Veteran fully unemployable, noting that the Veteran would have problems with physical work but would be able to perform sedentary work. However, during a February 2012 VA examination for depression, the Veteran stated that he retired in December 2010 secondary to difficulties with upper management. The VA examiner noted that irritability, difficulty concentrating, and indecisiveness were symptoms of his dysthymia. The Veteran was service-connected for dysthmia in September 2012 and given a 70 percent disability evaluation for this disorder. As the Veteran meets the initial rating criteria for TDIU and as the evidence of record indicates that the Veteran's service-connected disorders may, when considered together, render the Veteran unable to maintain substantially gainful employment, the Veteran should be afforded a VA examination to ascertain whether the service-connected disabilities alone preclude him from performing all forms of substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Provide a VA examiner with the claims file so that the examiner can review the evidence and provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral leg/foot disability is aggravated by (permanently worsened beyond normal progression of the disorder) the service-connected cervical spine disability. If the examiner finds that the bilateral foot/leg disability is aggravated by the service-connected cervical spine disability, the examiner should quantify the degree of aggravation if possible. The examiner should set forth the underlying reasons for all opinions expressed and conclusions reached. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Then, readjudicate the Veteran's claim for service connection for a bilateral leg/foot disorder. 3. Thereafter, undertake all necessary development on the claim for a TDIU. This must include providing proper notice, obtaining all pertinent records, and scheduling the Veteran for a VA examination to ascertain whether it is at least as likely as not that the service-connected disabilities alone preclude him from performing all forms of substantially gainful employment. 4. Then, after any other indicated development is completed, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and provided an appropriate opportunity to respond before returning the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs