Citation Nr: 1319251 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 11-24 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable rating for cervical strain with joint narrowing prior to October 17, 2011, and a rating in excess of 10 percent from October 17, 2011. 2. Entitlement to an initial compensable rating for lumbar strain prior to October 17, 2011, and a rating in excess of 10 percent from October 17, 2011. 3. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). 4. Entitlement to an effective date prior to September 10, 2010 for the grant of service connection for cervical strain with joint narrowing. 5. Entitlement to an effective date prior to September 10, 2010 for the grant of service connection for lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Atlanta, Georgia Regional Office (RO) located in Decatur, Georgia. By rating decision in April 2012, the agency of original jurisdiction (AOJ) increased the Veteran's disability rating for his cervical spine and low back disabilities to 10 percent each, effective October 17, 2011. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issues therefore remains in appellate status and are characterized as shown on the first page of this decision. In his substantive appeal, the Veteran requested a Board hearing. However, in an April 2013 statement, the Veteran withdrew his request. Additional evidence was added to the claims file after the most recent supplemental statement of the case (SSOC) issued in April 2012. However, although it appears that this evidence is not pertinent to the claims on appeal, in a May 2013 brief, the Veteran's representative waived of RO consideration of this evidence. 38 C.F.R. § 20.1304(c) (2012). The April 2011 rating also granted service connection for bilateral hip strain and assigned a 10 percent disability rating. In his notice of disagreement, the Veteran indicated that he also wished to appeal the initial rating assigned for this disability. However, in a subsequent October 2012 statement, through his representative, the Veteran requested to withdraw his claim. In a report of VA contact of November 2012, it is reported that the Veteran wished to withdraw a pending notice of disagreement of April 29, 2011, the issues he wished to withdraw are not listed. Nevertheless, in an April 2013 statement, the Veteran again indicated that he wished to appeal this matter. Unfortunately, as the Veteran's claim had previously been withdrawn, the Veteran's April 2013 statement is considered a new claim and must be adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to a TDIU and entitlement to earlier effective dates for the grant of service connection for cervical strain and lumbar strain 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. Prior to October 17, 2011, the Veteran's service-connected cervical strain with joint narrowing was manifested by subjective complaints of pain; but forward flexion was not limited to 40 degrees or less or combined range of motion of 335 degrees or less, and there was no muscle spasm, guarding, localized tenderness, abnormal gait, abnormal spinal contour, ankylosis or incapacitating episodes of at least one week over the past 12 months. 2. From October 17, 2011, the Veteran's service-connected cervical strain with joint narrowing was manifested by subjective complaints of pain with forward flexion limited to 30 degrees or less, and muscle spasm severe enough to result in an abnormal spinal contour, but without flexion limited to 15 degrees or less, ankylosis or incapacitating episodes of at least four weeks over the past 12 months. 3. Prior to October 17, 2011, the Veteran's service-connected lumbar strain was manifested by subjective complaints of pain; but forward flexion was not limited to 85 degrees or less, and there was no muscle spasm, guarding, localized tenderness, abnormal gait, abnormal spinal contour, ankylosis or incapacitating episodes of at least one week over the past 12 months. 4. From October 17, 2011, the Veteran's service-connected lumbar strain was manifested by subjective complaints of pain; but forward flexion was not consistently limited to 60 degrees or less, and there was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, ankylosis or incapacitating episodes of at least two weeks over the past 12 months. CONCLUSIONS OF LAW 1. Prior to October 17, 2011, the criteria for entitlement to an initial compensable evaluation for the Veteran's service-connected cervical strain with joint narrowing, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes (Codes) 5235-5243 (2012). 2. From October 17, 2011, the criteria for entitlement to a 20 disability evaluation, but no higher, for the Veteran's service-connected cervical strain with joint narrowing, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes (Codes) 5235-5243 (2012). 3. Prior to October 17, 2011, the criteria for entitlement to an initial compensable evaluation for the Veteran's service-connected lumbar strain, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes (Codes) 5235-5243 (2012). 4. From October 17, 2011, the criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected lumbar strain, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes (Codes) 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran's claims for higher ratings arise from an appeal of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with respect to the Veteran's cervical strain and lumbar strain claims. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and private treatment as well as VA fee-based examinations. A review of Virtual VA claims processing system includes additional VA treatment records, which were considered by the RO in the April 2012 SSOC. Moreover, the Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Additionally, the Veteran was afforded VA fee-based examinations in November 2010 and January 2012 to evaluate the severity of his service-connected cervical spine and low back disabilities. The Board finds that the VA fee-based examinations are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent January 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, 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). Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The General Rating formula for Diseases and Injuries of the Spine provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating formula, ratings are assigned as follows: a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation and incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent evaluation. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006); see also 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). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 4.45). See Mitchell, supra. Factual Background The Veteran filed his current claim for service connection in September 2010. In statements of record, the Veteran has reported pain of the spine. He also indicated that he was recommended for back surgery. In a May 2012 statement, he reported that he had to wear a back brace for support. The Veteran was afforded a VA fee-based examination in November 2010. With respect to both the cervical and lumbar spine, the Veteran reported stiffness, fatigue, spasms and decreased motion. However, he did not experience paresthesia or numbness. He did indicate that he had leg and foot weakness associated with his spine condition. He did not experience any erectile dysfunction, bowel problems or bladder problems. He experienced neck and back pain that occurred about three times per week and lasted for about 24 hours. The pain traveled from his neck to back, legs and feet. The pain level was moderate. It was exacerbated by physical activity and relieved by rest and medication. He could function with medication. During flare-ups, he did not experience any functional impairment or any limitation of motion. The Veteran was not receiving any treatment at that time and he had not had any episodes of incapacitation in the past 12 months. With respect to the cervical spine, the Veteran reported the following functional impairment, no prolonged standing or sitting as well as prolonged exertions. With respect to the lumbar spine, he did not experience any overall functional impairment. On physical examination, the Veteran's posture was normal, but he walked with an abnormal gait due to knee condition. His knee condition also required for the Veteran to use a brace and walk with a cane. Examination of both the cervical and lumbar spine showed no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, limb atrophy or ankylosis. Examination of the cervical spine did reveal abnormal tone described as hypertonic paracervical muscles. Examination of the lumbar spine also revealed abnormal muscle tone described as hypertonic lumbar muscles, but musculature was normal. Straight leg raising was negative. Range of motion of the cervical spine and lumbar spine was within normal limits. There were no additional restrictions following repetition. Joint function was not additionally limited by pain, fatigue, weakness lack of endurance or incoordination after repetitive use for both the cervical and lumbar spine. Inspection of the spine revealed normal head appearance with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. On neurological examination, there were no sensory deficits for the cervical or lumbar spine. Reflexes in the extremities were normal. There were no signs of cervical or lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. Contemporaneous x-rays of the cervical spine showed joint narrowing. X-rays of the lumbar spine were within normal limits. The examiner diagnosed cervical strain with joint narrowing. Subjective factors were complaints of neck pain and objective factors were hypertonic muscles. With respect to the lumbar spine, the examiner diagnosed lumbar strain and observed the same subjective factors. Objective factors were hypertonic muscles. In support of his claim, the Veteran submitted private treatment records from Carolina Family Chiropractic dated on October 17, 2011. The Veteran presented with neck and back pain and indicated that he could not stand up straight. At that time, range of motion of the cervical spine was 20 degrees flexion, 20 degrees extension, 20 degrees left and right lateral flexion and 60 degrees left and right rotation. Range of motion of the cervical spine was 50 degrees flexion, 30 degrees extension and 30 degrees left and right lateral flexion. Neuropathophysiology examination was normal. There was also a notation that the Veteran had mild scoliosis of the lumbosacral spine and mild hypolordosis of the cervical spine. Follow up treatment records dated a few days letter showed that the Veteran had better range of motion and was generally moving better. As there appeared to be evidence of an increase in severity from the prior VA examination, the Veteran was afforded another VA examination in January 2012. The Veteran reported flare-ups of the cervical spine where he got headaches and had to wear sunglasses to protect his eyes from lights. He experienced stiffness, which made it difficult to drive. Range of motion for the cervical spine was 45 degrees flexion, 45 degrees extension, 45 degrees right and left lateral flexion, 80 degrees right lateral rotation and 60 degrees left lateral rotation. There was no objective evidence of painful motion throughout. After repetitive testing, flexion, extension, and lateral flexion remained the same. However, right lateral rotation decreased to 60 degrees and left lateral rotation decreased to 55. Given the additional restriction noted, the examiner indicated that the Veteran did have additional limitation, functional loss and or functional impairment following repetitive use testing, which the examiner attributed to pain. Otherwise, there was no guarding, localized tenderness or muscle spasm. Muscle strength testing and sensory examination were normal. There was no muscle atrophy present. Reflexes were all normal. The examiner determined that the Veteran did no have any signs or symptoms of radiculopathy or any other neurologic abnormalities. The examiner also indicated that the Veteran did not have intervertebral disc syndrome. The Veteran did not use assistive devices. The examiner did opine that the Veteran's cervical spine condition impacted his ability to work because it was difficult to drive and he got headaches. A contemporaneous x-ray showed gentle reversal of the normal cervical lordosis centered at the level of C3-C4 possibly secondary to spasm. There was degenerative disc disease at each level from C3-C4 through C5-C6. There also appeared to be bilateral foraminal narrowing at C3-C4 that was worse on the left. With respect to the lumbar spine, the Veteran reported low back pain due to his legs being asymmetric. He reported flare-ups during which he had to lay down and rest until his symptoms subsided. Range of motion testing showed 90 degrees flexion with no objective evidence of pain, 20 degrees extension with pain at 15 degrees, 30 degrees right and left lateral flexion with no objective evidence of pain, 30 degrees right lateral rotation with no objective evidence of pain and 25 degrees left lateral rotation with pain at that point. After three repetitions, the examiner observed that the Veteran experienced pain on movement, but range of motion ranges remained the same. There was localized tenderness to palpation of the lumbosacral spine. There was no guarding or muscle spasm. Muscle strength and sensory examinations were normal. Knee reflexes were normal, but ankle reflexes were hypoactive on the right and left. Straight leg raising testing was negative on both sides. There were no signs or symptoms of radiculopathy or any other neurologic abnormalities. The examiner indicated that the Veteran did not intervertebral disc syndrome, but still determined that he had not had any incapacitating episodes in the past 12 months. X-rays of the lumbar spine were normal. The Veteran used a cane primarily for his knees. The examiner concluded that the Veteran's lumbar spine condition impacted his ability to work because he could not walk or stand for any significant length of time. VA treatment records have been associated with the record and reviewed. However, these records do not address the severity of the Veteran's spine disabilities for rating purposes. Analysis Cervical Strain with Joint Narrowing The Board now turns to whether an initial compensable rating is warranted for the Veteran's cervical strain with joint narrowing prior to October 17, 2011 and whether a rating in excess of 10 percent is warranted thereafter. Prior to October 17, 2011, when comparing the November 2010 VA fee-based examination results to the rating criteria, the Board finds that a compensable rating is not warranted during this period. Specifically, there was no objective finding of forward flexion of cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine not less than 335 degrees. The November 2010 VA examination showed that range of motion in all planes was within normal limits. Further, there was no evidence of guarding, abnormal gait, abnormal spinal contour, muscle spasm or ankylosis to warrant a compensable rating. There is no other medical evidence during this period addressing the severity of the Veteran's cervical spine. The Veteran himself indicated that he was not receiving treatment at that time. The Veteran has reported chronic neck pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a compensable rating. At the November 2010 VA examination, the examiner found that there was no additional restricted range of motion following repetitive use. Moreover, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a compensable rating is not warranted based on limitation of motion during this period. Further, there was no medical evidence of record showing that the Veteran suffered from incapacitating episodes having a total duration of at one week during the past 12 months to warrant a 10 percent rating under this provision. The November 2010 VA examination showed that the Veteran expressly denied any periods of incapacitation. In sum, there is no medical evidence prior to October 17, 2011 to demonstrate that a compensable rating is warranted during that period. The Board now turns whether a rating in excess of 10 percent is warranted from October 17, 2011. After reviewing the totality of the evidence and resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 20 percent rating is warranted, effective October 17, 2011. The October 17, 2011 private treatment record observed showed that flexion was limited to 20 degrees, which is one of the criteria for a 20 percent rating. The Board recognizes that follow treatment records a couple days later showed that range of motion was better and the Veteran's flexion was much improved on the subsequent VA examination. However, significantly, mild lordosis was also observed in the private report and the January 2012 VA examination report also noted reversal of normal cervical lordosis and indicated that this abnormality was possibly secondary to spasm. In other words, there appeared to be muscle spasm severe enough to result in abnormal spinal contour, which is another criteria for a 20 percent rating. Accordingly, when resolving the benefit of the doubt, the Board finds that a 20 percent rating is warranted from October 17, 2011. Nevertheless, even considering 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra, there has been no evidence of flexion of the cervical spine being limited to 15 degrees or less or favorable ankylosis of the cervical spine. At the January 2012 examination, flexion was to 45 degrees and did not change after repetition. Moreover, the examiner observed no objective evidence of pain on motion and clearly found no evidence of ankylosis. Flexion at its most restrictive, which was documented in the October 2011 private evaluation, was still higher than 15 degrees. In sum, the Veteran's restrictions are adequately contemplated by the herein assigned 20 percent rating. Further, again there has been no evidence of incapacitating episodes so a higher rating is not warranted under the rating criteria for intervertebral disc syndrome. With respect to neurologic abnormalities pursuant to Note (1) of the general rating formula for disease and injuries of the spine, throughout the course of the appeal, the medical evidence fails to show any findings of neurologic abnormalities associated with the Veteran's service-connected cervical spine disability. Sensory examinations have been normal. Strength and reflexes were also normal. Importantly, there has been no objective finding of bladder or bowel dysfunction. The most recent VA examination clearly found no evidence of associated neurological abnormalities. Thus, an additional separate rating is not warranted for any neurological symptoms. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. In this regard, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Moreover, the Veteran's statements were considered in assigning the current 20 percent rating herein. In conclusion, a preponderance of the evidence is against a compensable rating prior to October 17, 2011. However, after reviewing the overall record, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's service-connected cervical strain with joint narrowing from October 17, 2011. Nevertheless, a preponderance of the evidence is against a rating in excess of 20 percent during this period. As the preponderance of the evidence weighs against a higher rating during this period, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Lumbar Strain The Board now turns to whether an initial compensable rating is warranted prior to October 17, 2011, and a rating in excess of 10 percent thereafter. Prior to October 17, 2011, there was no medical evidence demonstrating that the Veteran's low back disability warranted a compensable rating. Again, range of motion findings at the November 2010 VA examination were all within normal limits. Also, there was no evidence of muscle spasm, guarding or localized tenderness. Again, there is no other medical evidence addressing the severity of the Veteran's lumbar spine during this period and the Veteran himself reported that he was not receiving any treatment. The Veteran has reported chronic low back pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a compensable rating. At the November 2010 VA examination, the examiner found that there was no additional restricted range of motion following repetitive use. Moreover, in this case there is no evidence showing that the Veteran's pain affected some aspect of the normal working movements of the body to constitute functional loss. Therefore, a compensable rating is not warranted based on limitation of motion prior to October 17, 2011. Further, there was no medical evidence of record showing that the Veteran suffered from incapacitating episodes having a total duration of at least one week during the past 12 months to warrant a 10 percent rating under this provision. The November 2010 VA examination report clearly documented that there had been no such episodes. In sum, a compensable rating is not warranted prior to October 17, 2011. Moreover, as of October 17, 2011, the Board finds that a 20 percent rating or higher is not warranted. The Board recognizes that the October 17, 2011 report indicated that flexion was limited to 50 degrees, which is one of the criteria for a 20 percent rating. However, a notation two days later indicated that range of motion was improved. Moreover, the January 2012 VA examination showed range of motion was to 90 degrees flexion and the previous examination November 2010 also documented normal range of motion. Further, at the January 2012 examination, the combined range of motion was greater than 120 degrees. Therefore, given that the remaining evidence of record essentially shows normal flexion during the course of the appeal, when weighing the evidence, the Board finds that this one instance of more restrictive motion is not indicative of the Veteran's overall disability picture and the remaining evidence shows that the Veteran's disability is adequately contemplated in the current 10 percent rating. Importantly, there was no evidence of guarding or muscle spasm severe enough to result in an abnormal spinal contour or abnormal gait, which was specifically found at the VA examination. There has also been no evidence of ankylosis. Again, the Veteran has reported chronic low back pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the 10 percent. As discussed above, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 10 percent from October 17, 2011 is not warranted based on limitation of motion. Further, there was no medical evidence of record showing that the Veteran suffered from incapacitating episodes having a total duration of at least two weeks during the past 12 months to warrant a 20 percent rating under this provision. The Board January 2012 VA examination clearly documented that there has been no such episodes. With respect to neurologic abnormalities pursuant to Note (1) of the general rating formula for disease and injuries of the spine, throughout the course of the appeal, the medical evidence during this period fails to show any findings of neurologic abnormalities associated with the Veteran's service-connected lumbar spine disability. Sensory examinations have been normal. Importantly, there has been no objective finding of bladder or bowel dysfunction. The January 2012 VA examiner clearly found no associated neurologic abnormalities. Thus, an additional separate rating is not warranted for any neurological symptoms. Again, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. With respect to this matter, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, a preponderance of the evidence is against an initial compensable rating prior to October 17, 2011, and a rating in excess of 10 percent from October 17, 2011. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Extraschedular The Board has also contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected cervical and low back disabilities with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's disability ratings contemplate his functional limitations, primarily consisting of pain and reduced motion, caused by his cervical and low back disabilities. There are no additional symptoms of these disabilities that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Entitlement to an initial compensable rating for cervical strain with joint narrowing prior to October 17, 2011, is denied. Entitlement to a 20 percent rating, but no higher, for cervical strain with joint narrowing, effective October 17, 2011, is granted subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for lumbar strain prior to October 17, 2011, and a rating in excess of 10 percent thereafter, is denied REMAND Entitlement to TDIU, is an element of all claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). The provisions of 38 C.F.R. § 4.16(a) set out minimum percentage requirements for service connected disabilities that serve as the basis for the grant of TDIU. In the instant case, the Veteran meets the minimum percentage requirements for a TDIU pursuant to 38 C.F.R. § 4.16. Moreover, the most recent January 2012 VA examination indicated that the Veteran's cervical and lumbar spine disabilities did impact the Veteran's ability to work. However, the examiner did not offer a clear opinion as to whether the Veteran's service-connected disabilities prevented him from obtaining or maintaining all gainful employment. Moreover, although a September 2011 VA treatment record indicated that the Veteran had finished school, it is unclear from the record whether he is currently employed. Thus, this matter must be returned to the RO for further development. As a final matter, in the April 2011 rating decision, the RO granted service connection cervical strain with joint narrowing and lumbar strain, effective September 10, 2010. The April 2011 notice of disagreement also indicated that the Veteran was seeking an earlier effective date from 2004. As such, the Veteran's statement can be construed as showing disagreement with the effective date assigned and a desire to appeal such date pursuant to 38 C.F.R. § 20.201. However, the RO has not issued a statement of the case with respect to these issues. The Court has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the RO to issue a statement of the case, and to provide the veteran an opportunity to perfect the appeal. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should send the Veteran an appropriate VCAA letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) containing notice of the information and evidence necessary to substantiate a claim of entitlement to a TDIU. The RO should request that the Veteran submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. The RO should take appropriate action pursuant to 38 C.F.R. § 19.26 (2012), to include furnishing the Veteran and his representative with an appropriate statement of the case with respect to the issues of entitlement to an effective date prior to September 10, 2010 for the grant of service connection for cervical strain with joint narrowing and lumbar strain. The Veteran and his representative should be advised of need to file a timely substantive appeal if the Veteran desires to complete an appeal as to these issues. 3. The Veteran should be scheduled for an appropriate VA medical examination to ascertain the severity of his service-connected disabilities and their impact on his ability to obtain and retain substantially gainful employment. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the record and examining the Veteran, the examiner should offer an opinion as to whether the service-connected disabilities, in the aggregate, preclude the Veteran from securing and following substantially gainful employment, without regard to any nonservice-connected disorders. 4. Following the above development, the RO should review the claims file and readjudicate the Veteran's claim for a TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs