Citation Nr: 1320220 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-33 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to January 24, 2012 and 20 percent from January 24, 2012 for degenerative disc disease of the cervical spine. 2. Entitlement to an initial increased rating for right cervical radiculopathy, evaluated as 20 percent disabling from July 14, 2010. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1978 to August 2008 This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Salt Lake City, Utah. This matter was previously before the Board in January 2011, August 2011, and January 2013 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the remands, and the Board will proceed to adjudicate the appeal. During the pendency of the Veteran's appeal, the RO in an April 2013 rating decision, granted the Veteran service connection for right cervical radiculopathy evaluated as 20 percent disabling effective from July 14, 2010. As his right cervical radiculopathy has been shown to be related to his cervical degenerative disc disease, for which the rating is on appeal, the Board will consider whether the Veteran is entitled to a compensative rating prior to July 14, 2010, or a higher initial evaluation from July 14, 2010 for his cervical radiculopathy. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Prior to January 24, 2012, the Veteran's service-connected cervical spine degenerative disc disease was manifested by pain; objectively, he had forward flexion to greater than 30 degrees, combined range of motion of the cervical spine greater than 170 degrees, no muscle spasm or severe guarding, no bladder or bowel symptoms, and no incapacitating episodes. 2. From January 24, 2012, the Veteran's service-connected cervical spine degenerative disc disease was manifested by pain; objectively, he had flexion greater than 15 degrees with no muscle spasm or severe guarding, no bladder or bowel symptoms, and no incapacitating episodes. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has left cervical radiculopathy. 4. The Veteran is service connected for right cervical radiculopathy evaluated as 20 percent disabling from July 14, 2010. 5. The Veteran's right cervical radiculopathy is manifested by pain which is analogous to no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to January 24, 2012 and 20 percent from January 24, 2012 for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5235 - 5243, 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a rating in excess of 20 percent from July 14, 2010 for right cervical radiculopathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8510-8514 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with an initial evaluation following the grant of service connection for a cervical spine disability. 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). No additional discussion of the duty to notify is therefore required. VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment records (STRs), VA medical records, and the statements of the Veteran in support of his claim. The Board has considered the statements and 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 claim for which VA has a duty to obtain. VA examinations with opinions were obtained in 2008, 2009, 2012, and 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded an adequate VA examination and opinion. The reports include clinical examinations, diagnostic testing, and the Veteran's reported symptoms. The reports with addendum, when read as a whole, provide findings relevant to the criteria for rating the disability(ies) at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating musculoskeletal disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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 and 4.45 (2012), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2011). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; 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. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rating the Spine The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2012). A 20 percent evaluation is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine is 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 evaluation is warranted for forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. Unfavorable ankylosis if the entire spine warrants a 100 percent rating. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Prior to January 24, 2012 The Veteran separated from service on August 31, 2008. His cervical spine disability is rated as 10 percent from September 1, 2008 to January 24, 2012. Initially, the Board notes that in his VA Form 9, dated in August 2009, the Veteran stated that his disability should be rated as 40 percent disabling based on alleged incapacitating episodes while he was in Afghanistan. He stated that from February 2007 until May 2007, he had pain radiating down his arm and was unable to drive a vehicle or wear body armor. 38 C.F.R. § 3.400 provides that in direct service connection claims that the effective date for award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within 1 year of separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. In the present case, the Veteran separated from active service on August 31, 2008 and has been awarded service connection from September 1, 2008. Thus, he is not entitled to an effective date earlier than September 1, 2008, and consequently, could not entitled to a 40 percent rating for his claimed incapacitating episodes in 2007, a time period prior to September 1, 2008. (The Board also notes that an inability to drive a vehicle and/or wear body armor is not an incapacitating episode under VA regulation.) Nevertheless, in determining the Veteran's level of disability from September 1, 2008, the Board will consider the history of his disability as it may provide probative evidence of his disability at the time he separated from service and for the rating period on appeal. The Veteran would be entitled to a 20 percent evaluation if the evidence reflects that he had forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine is 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. The evidence of record, as described below, is against a finding that the Veteran's cervical spine disability warrants a rating in excess of 10 percent prior to January 24, 2012. An April 2008 QTC (contract) examination report is of record. It reflects that the Veteran reported that he has localized pain in the neck which is aching and sharp. He reported that at the time of the pain, he can function with medication. He also reported that he was not receiving any treatment for his disability and that it has not resulted in any incapacitation. The record reflects that the Veteran's gait was normal. It further reflects that upon examination of the cervical spine, there was no evidence of radiating pain on movement, no evidence of muscle spasm, and no evidence of tenderness. There was no ankylosis of the cervical spine. The Veteran had forward flexion to 45 degrees, extension to 40 degrees, right lateral flexion to 25 degrees, left lateral flexion to 23 degrees, right rotation to 80 degrees, and left rotation to 80 degrees. There was no separate finding as to when pain occurred. The examiner noted that pain was the major functional impact. There was no additional limitation due to fatigue, weakness, lack of endurance and incoordination after repetitive use and no additional degree of limitation. The examiner found that there were no signs of IVDS with chronic and permanent nerve root involvement. The Veteran underwent another examination in December 2009. The December 2009 VA examination report reflects that the Veteran did not have any reported treatment for his neck. The Veteran reported that he had been separated from service in August 2008 and had not had any treatment in the 15 months since separation. He reported that the pain was better following radiofrequency ablation in 2007. He further reported that the radiofrequency ablation made "significant improvement" in his pain and "now he has an aching sensation every now and then. He states the pain occurs approximately once or twice a month, but is short-lived, lasting for an hour or less. It is usually a result of some strenuous activity and alleviated with rest. He denies stiffness and flare-ups lasting more than an hour." He denied unsteady gait, numbness, weakness, erectile dysfunction, bowel or bladder complaints, walking limitations, and standing limitations. He did not use any medications and denied the use of assistive devices. He reported that he was a safety and training officer and that the neck pain had no current effect to his job. In addition, the Veteran did not feel limited at this time with any daily activities due to neck pain. He also denied any incapacitating episodes in the past 12 months. Upon clinical examination in December 2009, the Veteran had mild reversal of cervical lordosis, there was no tenderness to palpation, he had 5/5 on muscle testing, and sensation was intact. He had 2+ reflexes. A goniometer was used in testing his range of motion; the Veteran had forward flexion, extension, and bilateral lateral flexion to 45 degrees each without pain. He had bilateral lateral rotation to 80 degrees without pain. There was some crepitus noted with motion of the cervical spine. On repetitive testing, there was no additional loss of motion due to pain, fatigue, weakness, or incoordination. Range of motion values were unchanged from baseline testing after repetitive use. The Spurling maneuver, used to assess nerve root/ radicular pain, was negative bilaterally. A May 2010 VA clinical record reflects that the Veteran reported that he has "started to have pain return in his neck related to a previous neck problem from about 2 years ago. States he had a procedure to relieve the pain, but was told the pain may return. States it has." Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent. As noted above, the Veteran would be entitled to a higher evaluation if he had forward flexion limited to 30 degrees or less, ankylosis, a combined range of motion 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. The evidence of record is against such findings. The Veteran's forward flexion was 45 degrees in April 2008 and in December 2009. His combined range of motion was far greater than 170 degrees on both examinations. The Board notes that the December 2009 clinical examination report notes mild reversal of cervical lordosis; however, the evidence is against a finding that this was due to muscle spasm or severe guarding as there is no evidence of muscle spasm or guarding, and the April 2008 specifically notes no muscle spasm. The May 2010 report is negative for range of motion limited to 30 degrees or less, muscle spasm, or severe guarding. Under the current regulation for the spine, associated objective neurologic abnormalities are evaluated under an appropriate diagnostic code. There is no competent credible evidence of record that the Veteran has bowel or bladder impairment due to his service-connected spine disability. The Veteran specifically denied such upon examination. There is also no competent credible evidence of incapacitating episodes as defined by VA regulation. 38 C.F.R. § 4.71a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). In addition, the record reflects that the Veteran did not have IVDS. Finally, the Board will discuss the evidence of record with regard to the cervical radiculopathy. The evidence of record is against a finding that the Veteran has left cervical radiculopathy; the clinical records, as discussed above and below limit his radiculopathy to his right upper extremity. Thus, a separate rating is not warranted. With regard to right cervical radiculopathy, the Board will address that disability in further detail in a separate section below. From January 24, 2012 The present claim involves staged ratings. During the pendency of the Veteran's claim, the RO in a February 2012 rating decision granted the Veteran an evaluation of 20 percent disabling for cervical degenerative disc disease, effective from January 24, 2012. An initial staged evaluation in excess of 20 percent from January 24, 2012 would be warranted if the evidence reflected that the Veteran's cervical spine was limited in forward flexion to 15 degrees or if he had ankylosis. A January 24, 2012 VA examination report is of record. It reflects that the Veteran had less movement than normal of the cervical spine. It also reflects that there was no guarding and/or muscle spasm of the cervical spine, no muscle atrophy, and no localized tenderness or pain to palpation for joints/soft tissue. The Veteran had normal light touch sensory examination results. He had mild constant pain on the right upper extremity, but no other signs of radiculopathy. He also had no other neurologic abnormalities related to the spine (such as bowel or bladder). Flexion of the cervical spine was noted to be to 25 degrees, extension to 25 degrees, bilateral lateral flexion to 45 degrees, and bilateral rotation to 80 degrees. Pain was noted to begin at the endpoints noted above. Range of motion was unchanged after repetitive testing. A September 2012 VA record reflects that the Veteran reported that he has "complete relief of his pain from cervical [radio frequency lesioning] in February/March 2012. It was noted that the Veteran's pain was described as "relieved by procedures, and patient is currently pain free." The Veteran denied tingling numbness, weakness, and bowel or bladder symptoms. It was noted that the Veteran "receives complete relief of his cervical spondylosis pain [status post rfl]. A February 1, 2013 VA examination report reflects that the Veteran has no chronic complaints of left upper extremity radiculopathy. An April 11, 2013 VA examination report reflects the opinion of the examiner that the there is no evidence of a left cervical radiculopathy. Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent. The evidence of record, as noted above, is against a finding that the Veteran's cervical spine was limited in forward flexion to 15 degrees or that he had ankylosis. The evidence of record is also against a finding that the Veteran had left upper extremity radiculopathy, bowel or bladder impairment, or other neurological impairments, other than right upper extremity radiculopathy, which would warrant a separate evaluation, due to his service-connected spine disability. There is also no competent credible evidence of incapacitating episodes as defined by VA regulation. 38 C.F.R. § 4.71a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). In conclusion, the evidence of record is against a finding that the Veteran's service-connected cervical spine degenerative disc disease warrants a rating in excess of 10 percent prior to January 24, 2012, and/or a rating in excess of 20 percent from January 24, 2012. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Right Cervical Radiculopathy Note 1 to the General Rating Formula for Disease and Injuries of the Spine states that associated "objective neurologic abnormalities" will be rating under an appropriate diagnostic code. The Veteran is service connected for right cervical radiculopathy, evaluated as 20 percent disabling, from July 14, 2010. As his right cervical radiculopathy has been shown to be related to his cervical degenerative disc disease, for which the rating is on appeal, the Board will also consider whether the Veteran is entitled to a compensative rating prior to July 14, 2010, or a higher initial evaluation from July 14, 2010 for his cervical radiculopathy. The April 2008 and December 2009 examination reports are against a finding of radiculopathy. The April 2008 contract examination report reflects that there was no evidence of radiating pain, or chronic and permanent nerve root involvement. The December 2009 VA examination report reflects that the Spurling maneuver, used to assess nerve root/ radicular pain, was negative bilaterally, and that the Veteran denied weakness or numbness. In addition, the clinical records from July 14, 2010 to present are against a finding that a rating in excess of 20 percent is warranted. The Veteran's radiculopathy is rated under DC 8511. A higher evaluation would be warranted if the Veteran had at least moderate incomplete paralysis of the middle radicular group. The words "mild", "moderate", and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). November 2010 VA clinical records reflect that the Veteran reported right upper extremity anterolateral shooting pain/numbness from the upper deltoid area to the wrist which is intermittent in nature. He reported that he had previous similar symptoms; however, they had been relieved by "nerve burning" in 2007 and did not manifest again until three months earlier. The records reflect that the Veteran had a physical therapy clinic consultation for neck pain. The Veteran reported that "sometimes in the right arm" he has loss of sensation/numbness, but does not think he has any weakness. He described the pain as radiating into the upper extremities when he turns his head too far or too fast. As noted above, the January 24, 2012 VA examination report reflects mild constant pain on the right upper extremity, but no other signs of radiculopathy. The September 2012 VA record reflects that the Veteran had complete relief from his cervical pain. He denied tingling, numbness, and weakness. A February 1, 2013 VA examination report reflects that the Veteran was noted to have had intermittent right upper extremity radiating pain from neck to right shoulder down to right wrist. The examiner opined, pertinent part, as follows: [the Veteran's] intermittent nerve pain is consistent with the expected cervical mid to lower radicular nerve pathways C3-C6 foraminal narrowing per MRI 7/10, however there may could be impingement at the right shoulder or elbow as well as DDD of the cervical spine which vet is SC for. To what degree each of these factors in addition to aging and natural disease progression has on vet's current neck condition would be mere speculation. Vet has no chronic complaints of left upper extremity radiculopathy reported per medical record review prior to 2010 , and there is no EMG/NCS done to verify with certainty which nerve pathway is the likely cause of vet's intermittent right upper extremity pain now worsening since his 1/12 C&P exam. Vet was noted to have mild dysesthesia per pcc note 2010 and decreased ROM with dysesthesia right upper extremity related to cervical spine on C&P exam 1/12 with flexion and extension. Vet's subjective complaints were described as MILD by the examiner 1/12 and there is objective evidence on [follow up] pain clinic exams after 1/12 that vet had relief of symptoms after cervical steroid injections and [follow up primary care clinic] exam 2/12 - 8/12. Vet was diagnosed with cervical radiculitis per notes which could be part of the reason for vet's subjective reported worsening right upper extremity symptoms on C&P exam 1/12. An April 2013 VA examination report reflects that the Veteran had complete relief after radiofrequency lesioning in February or March of 2012 until approximately two weeks prior to the April 11, 2013 appointment when he "started to have pain going from the upper right trapezius region down the lateral upper arm to extensor forearm. The pain is constant and mild at this time." The April 11, 2013 clinical opinion states as follows: The Veteran's cervical nerve root dysfunction does cause right arm pain and numbness of his fingers when it flares up to it's maximum. This does prevent him from using the arm for lifting or even fine finger/hand movements. He has responded remarkable well to radiofrequency treatments which can give him complete relief for a year. He clearly has subjective symptoms consistent with a mild right cervical radiculopathy (involving C6, C7 roots primarily) and an objective MRI scan consistent with foraminal narrowing which is likely causing the nerve root irritation on the right. His exam today is normal and there are no objective findings of motor weakness sensory loss or reflex asymmetry on my examination. He has no functional limitations due to his pain on the exam today and would would [sic] require speculation to determine his limitations during his severe flares which is not present today. The limitations described above were per the veteran. There is no evidence of a left cervical radiculopathy, thus, an opinion is not indicated. The April 2013 report reflects that the Veteran had full strength of the extremities, mild constant right upper pain, no paresthesias and/or dysesthesias, and no numbness. His sensory examination was normal and he had reflexes, albeit hypoactive. His only abnormal nerve was the middle radicular group, which was noted to have mild incomplete paralysis; all other nerves were normal. The Board finds that the Veteran's pain, which has been described as mild and intermittent at times, and which was completely absent for approximately a year after treatment, does not rise to the level of moderate incomplete paralysis. In conclusion, the evidence of record is against a finding that the Veteran's service-connected right cervical radiculopathy warrants a compensable rating period to July 14, 2010, or a rating in excess of 20 percent from July 14, 2010. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra-schedular The Board has considered that the Veteran has several service-connected disabilities and has determined which symptoms are attributable to a service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) . The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected cervical spine disability. The criteria consider that pain causes limitation of motion, and that nerves may be affected by a cervical spine disability. All neurologic symptoms are considered under the rating criteria. The Board has also considered the Veteran's statements; however, the evidence does not reflect that any reported symptoms caused frequent hospitalization or marked interference with work. Therefore, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). To the contrary, the December 2009 VA examination report reflects that the Veteran reported that his disability had no affect on his employment. Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence of record is against a finding that a claim for TDIU has been reasonably raised. The records are negative for a finding that the Veteran was unable to maintain substantial gainful employment due to service-connected disability (ies). Not only are the records negative for such a finding, but a September 2012 VA clinical record reflects that the Veteran was taking a new job as a contractor in Afghanistan working in Kabul. In addition, a December 2009 report, as noted above, reflects that the Veteran reported that his cervical spine disability had no affect on his employment. Based on the foregoing, the Board finds that a remand for RO consideration of entitlement to TDIU is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent prior to January 24, 2012 and 20 percent from January 24, 2012 for degenerative disc disease of the cervical spine is denied. Entitlement to an initial increased rating for right cervical radiculopathy, evaluated as 20 percent disabling from July 14, 2010 is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs