Citation Nr: 1320626 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-27 774A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 20 percent for low back sprain. 2. Entitlement to a rating higher than 10 percent for right elbow strain. 3. Entitlement to a rating higher than 10 percent for left elbow strain. 4. Entitlement to a rating higher than 10 percent for neck ligament sprain. 5. Entitlement to higher ratings for a mood disorder with anxiety and depression, rated as 30-percent disabling prior to May 20, 2011, and as 70-percent disabling since. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to June 1979. This appeal to the Board of Veterans' Appeals (Board) is from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for a rating higher than 30 percent for his mood disorder with anxiety and depression, a rating higher than 10 percent for his low back sprain, a rating higher than 0 percent for his upper back (neck) ligament sprain, and ratings higher than 0 percent for his right and left elbow strains. In another decision since issued in May 2007 during the pendency of the appeal, however, the RO increased the ratings for the low back sprain from 10 to 20 percent and for the neck ligament and right and left elbow strains from 0 to 10 percent. The RO also made these rating increases retroactively effective from July 3, 2006, the date of receipt of the Veteran's claims for higher ratings for these disabilities. He has continued to appeal, requesting even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible ratings for these disabilities, absent any express indication to the contrary). In June 2011 the Board remanded the claims to the RO via the Appeals Management Center (AMC) - including to have the Veteran undergo additional VA Compensation and Pension examinations reassessing the severity of the service-connected disabilities at issue. Following completion of the requested examinations, and consideration of the results, an August 2012 AMC decision increased the rating for the mood disorder with anxiety and depression from 30 to 70 percent as of May 20, 2011, the date of the VA compensation and pension examination the Veteran had had on remand concerning this claim. So this claim now concerns whether a rating higher than 30 percent was warranted prior to May 20, 2011, and whether a rating higher than 70 percent has been warranted since. The additional claims for increases in compensation conversely were denied entirely in a November 2012 Supplemental Statement of the Case (SSOC). FINDINGS OF FACT 1. The Veteran's low back sprain has not involved limitation of motion of the thoracolumbar spine to 30 degrees or less. There is no indication of incapacitating episodes of Intervertebral Disc Syndrome (IVDS) or other associated neurological impairment. 2. His neck ligament sprain does not involve limitation of motion of the cervical segment of his spine to 30 degrees or less or any associated neurological impairment. 3. His right and left elbow strains both have been characterized by noncompensable limitation of motion, and by August 2011 VA examination were considered to have effectively resolved without subsequent limitation. 4. For the time period prior to May 20, 2011, the Veteran's mood disorder with anxiety and depression involved occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 5. Since May 20, 2011, there is no evidence indicating this condition has progressed to a level involving total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria are not met for an evaluation higher than 20 percent for low back sprain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5237 (2012). 2. The criteria are not met for an evaluation higher than 10 percent for neck ligament sprain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5237 (2012). 3. The criteria are not met for an evaluation higher than 10 percent for right elbow strain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5206-5208, 5213 (2012). 4. The criteria are not met for an evaluation higher than 10 percent for left elbow strain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5206-5208, 5213 (2012). 5. The criteria are not met for a higher evaluation for a mood disorder with anxiety and depression, rated at 30 percent prior to May 20, 2011, and at 70 percent thereafter. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.130, Diagnostic Code 9435 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). Through July and November 2006 correspondence, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The U. S. Court of Appeals for Veterans Claims (Court) has prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the July 2006 VCAA notice correspondence preceded the September 2006 rating decision on appeal, and thereby met the definition of timely notice. However, the November 2006 VCAA correspondence was not in accordance with the requisite timing-of-notice standard. This notwithstanding, the Veteran had opportunity to respond to the November 2006 correspondence before issuance of the most recent November 2012 Supplemental Statement of the Case (SSOC) continuing the denial of his claim. If, for whatever reason, VCAA notice was not provided prior to the initial adjudication of a claim or, if provided, the notice was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then going back and readjudicating the claim - including in a Statement of the Case (SOC) or Supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), , affirmed, 499 F.3d 1317 (Fed. Cir. 2007). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has clarified that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). See also 38 C.F.R. § 20.1102. Here, there has not been any such pleading or allegation, much less showing. The RO/AMC furthermore has taken appropriate action to comply with the duty to assist the Veteran through obtaining records of VA outpatient treatment and arranging for him to undergo VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). There is no indication of pertinent outstanding private outpatient treatment records to acquire. Whereas a September 2006 VA examination report denotes that the Veteran had been on "disability retirement" since 1995, the Board does not ascertain the need to obtain corresponding records of any prior disability award, given that the primary question presented in this case is the relative severity of the Veteran's current symptomatology of service-connected disability. Moreover, the clinical findings obtained on VA examination are what are ultimately necessary to resolve the Veteran's claims for increase, as the examination reports are directly responsive to the applicable rating criteria. Hence, the record is sufficiently complete without any disability retirement records. See e.g., Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those records relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). In furtherance of his claims, the Veteran has provided several personal statements. A Board videoconference hearing was held in this matter. There is no indication otherwise of any further relevant evidence or information which has not yet been obtained. The record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide to the appellant regarding what further evidence he should submit to substantiate his claims. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on its merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed, actually from one year prior, until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Low Back Sprain The Veteran's service-connected low back sprain is evaluated at the 20 percent level, since having filed his July 2006 claim for increased rating, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237 (for lumbosacral strain). Under applicable rating criteria, this disability is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 20 percent rating upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher available 40 percent rating is made for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) 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 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. 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 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 (0 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. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain and painful motion must be objectively confirmed, however, such as by visible expression, and if a Veteran already has the maximum rating assignable based on limitation of motion, it is not necessary to consider these provisions. Johnston v. Brown, 10 Vet. App. 80 (1997). Moreover, the Court has clarified that, although pain may be a cause or manifestation of functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 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.; see 38 C.F.R. § 4.40. Upon a September 2006 VA joint and spine examination, the Veteran indicated that his back pain symptoms had gotten progressively worse over the years, and reported chronic constant upper back pain, described as an aching throbbing sensation. It radiated up into his neck and shoulders. He reported chronic intermittent lower back pain that felt like a pulling, stabbing sensation and radiated down into the legs. He reported flare-ups of upper back pain two times per week lasting for 8 to 16 hours, with a pain level of 10/10. He did not wear a back brace or use a cane. He reported that he was able to perform activities of daily living including light chores. He reported no prescribed bedrest over the previous 12 months. On objective physical examination, there were no gross motor or sensory deficits appreciated. Reflexes were equal throughout. There was normal gait and posture, without the aid of a cane. On repetitive motion testing, the thoracolumbar spine demonstrated forward flexion to 60 degrees; extension to 20 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation 45 degrees. The Veteran reported pain with motion. No spasms or tenderness were appreciated. X-ray evaluation indicated a normal lumbar spine, and no significant abnormality seen of the thoracic spine. On subsequent VA examination of August 2011 (completed pursuant to the Board's remand directive), the Veteran was noted not to have had any hospitalization or emergency room visits due to back or neck issues. There were no impediments to activities of daily living, other than not being able to sit or stand for prolonged periods of time (more than 30-45 minutes at a time). There was no impediment to usual occupation, although the Veteran was unemployed. The diagnosis pertaining to the thoracolumbar spine was of back strain. He described throbbing discomfort of the lower back that was episodic and lasted about 3 to 4 days. He indicated that the first day was level 8 to 9 in pain, second day was 5 to 6 and it remained around 2 to 3 until resolving. He referred to having two of these episodes monthly. Range of motion in the thoracolumbar spine was measured at forward flexion to 70 degrees, with painful motion at 50 degrees; extension to 20 degrees; right and left lateral flexion to 30 degrees; right and left lateral rotation 30 degrees. These findings were the same after repetitive use testing. There was no apparent functional loss and/or functional impairment of the thoracolumbar spine. There was no localized tenderness or pain to palpation for the joints or soft tissue of the thoracolumbar spine. There was not guarding or muscle spasm of the thoracolumbar spine. Muscle strength and reflexes were normal. There was no muscle atrophy. A sensory exam was all normal. Straight leg raising test was negative. There was no radiculopathy. There were no other neurologic abnormalities such as bowel or bladder problems, or pathologic reflexes. There was found Intervertebral Disc Syndrome (IVDS) of the thoracolumbar spine; however, the Veteran had not had any incapacitating episodes over the previous 12 months due to IVDS. The Veteran did not use any assistive devices. The thoracolumbar spine condition was not considered to impact the Veteran's ability to work. The diagnosis given was lumbar strain, resolved, no residuals, no limitations; and lumbar degenerative disc disease L5-S1 with residuals, anterior spondylolisthesis grade 1, minimal limitation, not caused by or related to service or a service-connected condition. Having reviewed the foregoing, the Board has determined that it is unable to grant in excess of a 20 percent evaluation for the Veteran's service-connected low back sprain. The applicable rating standard clearly indicates that a next higher available 40 percent evaluation under 38 C.F.R. § 4.71a is for when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. Here the most pronouncement limitation of motion findings, from the August 2011, do not fall within the ambit of what would objectively warrant an increased rating to 40 percent. This examination revealed forward flexion of the thoracolumbar spine to 70 degrees, with onset of painful motion at 50 degrees, and no further diminution of motion following repetitive use testing. When properly factoring in additional limitation of motion attributable to functional loss, pursuant to DeLuca v. Brown and 38 C.F.R. § 4.45, in this case due to painful motion, the Veteran had forward flexion equivalent to 50 degrees. As a result, the rating requirement for a 40 percent evaluation has not been met. Nor for that matter does the Veteran manifest any form of thoracolumbar spine ankylosis as another condition precedent for a higher rating, given than he has a significant degree of retained joint mobility, and ankylosis by its nature constitutes the total absence of mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Meanwhile, the Board does not find any other source of evaluative criteria to substantiate an increased rating. Whereas the Veteran has been found to have IVDS, he also does not experience any incapacitating episodes of that condition, inasmuch as an incapacitating episode is defined under the rating criteria as a symptomatic episode requiring physician-prescribed bedrest. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. There is likewise no separate compensable neurological impairment such as radiation of pain and/or numbness from the lower back to the lower extremities. Accordingly, there is no basis upon which to award any higher rating, and the best approximation of the severity of the Veteran's lumbar spine disorder remains at the 20 percent level. Neck Ligament Sprain The Veteran's service-connected neck ligament sprain is rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (again, for lumbosacral or cervical strain). The applicable rating criteria is similar to that previously cited under the General Rating Formula for Diseases and Injuries of the Spine, with pertinent revisions as cited below. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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 of more of the height. A 20 percent rating is for assignment upon a showing of 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 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 for assignment for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for favorable ankylosis of the entire thoracolumbar spine. A 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) 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. 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. 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. The report of a May 2007 VA outpatient x-ray evaluation study of the cervical spine indicates an impression of mild degenerative disc disease and spondylosis from C4 to C6; bilateral foraminal stenosis due to uncinate process hypertrophy; and straightening of the upper cervical lordosis. In September 2007 the Veteran was evaluated for level 4 out of 10 pain in his neck region. In October 2007, he presented for a neurology consult with neck pain, with numbness and tingling in the fourth and fifth digits as well as medial hand and forearm. He described trouble sleeping because of the pains. On subsequent evaluation in April 2009 he had neck pain radiating down to the right shoulder, described as level 10 out of 10 pain. In September 2010 the Veteran indicated having limited cervical spine range of motion and neck pain, and further described a recent episode where he had temporarily lost peripheral visions, without recurrence or residual symptoms. On VA examination of August 2011, the diagnosis at the outset was indicated as cervical strain. The Veteran referred having his neck being "tender and uncomfortable" with constant discomfort of level 8/10. Pain happened weekly but was so frequent that it seemed like it occurred "all of the time." There were no flare-ups that impacted the function of the cervical spine. Range of motion consisted of forward flexion to 45 degrees; extension to 45 degrees; right and left lateral flexion to 30 degrees; right and left lateral rotation 60 degrees. There was no additional limitation of motion following repetitive use testing. There was no muscle spasm or guarding of the cervical spine. Muscle strength and reflexes were all normal, as was a sensory exam. There was no radiculopathy, and there were no other neurologic abnormalities. The Veteran had IVDS of the cervical spine, but no associated incapacitating episodes. There were no assistive devices used. There was no impact upon the ability to work. The diagnosis was cervical strain, resolved, no residuals, no limitations; cervical spondylosis, minimal limitation, not caused by or related to service or service-connected disability, most likely due to a 2001 motor vehicle accident. Upon thorough review of the record, the Board will continue the assigned 10 percent evaluation for service-connected neck ligament strain. To warrant the next higher rating of 20 percent, the evidence would have to show 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 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. Here, the August 2011 VA examination indicated forward flexion of the cervical spine to 45 degrees (including after repetitive motion testing), which essentially is normal cervical spine mobility. The combined range of motion found well exceeded the upper limit of 170 degrees. Also, there was not muscle spasm and/or guarding with severe attendant symptoms, resulting in abnormal gait or abnormal spinal contour. Indeed, the VA examiner's diagnostic summary indicated that cervical strain had resolved, with no residuals. The presence of cervical spondylosis, meanwhile, (with minimal limitation) was attributed to nonservice-connected causes. Even assuming that all cervical spine pathology were attributable to service-connected disability however, the Board cannot discern any objective limitation consistent with an increased rating under the General Rating Formula for Diseases and Injuries of the Spine. Nor is any other applicable rating criteria more beneficial, inasmuch as the Veteran's IVDS of the spine again was not manifested by recognized incapacitating episodes, and he also did not have the separate compensable condition of cervical spine radiculopathy. It follows that the existing 10 percent evaluation is being continued, under provisions of the VA rating schedule. Right and Left Elbow Strains Both right and left elbow strains have been evaluated at 10 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5206-5024, for limited forearm flexion, rated according to tenosynovitis. The rating schedule provides that tenosynovitis is in turn rated under the criteria for degenerative arthritis, pursuant to Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis will be rated on the basis of limitation of motion of the specific joint or joints involved. When however, limitation of motion at the joint(s) involved is noncompensable, a 10 percent rating is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under this diagnostic code. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion but x-ray evidence of involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present but with occasional incapacitating exacerbations. Given that Diagnostic Code 5003 effectively limits the assignable disability rating to 10 percent where, as here, there is at most one major joint group involved, the Board has examined all other potentially applicable diagnostic codes that would support an increased rating beyond 10 percent. Additional diagnostic codes for consideration include 38 C.F.R. § 4.71a, Diagnostic Code 5206 for limitation of flexion of the forearm, which when involving a major extremity (has here) provides for 0 percent rating for flexion limited to 110 degrees; 10 percent rating for flexion limited to 100 degrees; 20 percent rating for flexion limited to 90 degrees; 30 percent rating for flexion limited to 70 degrees; 40 percent rating for flexion limited to 55 degrees; and 50 percent rating for flexion limited to 45 degrees. Diagnostic Code 5207 provides for assignment of 10 percent evaluation for an affected major extremity for limitation of extension of the forearm to 60 degrees; 20 percent evaluation for limitation of extension to 75 degrees; 30 percent evaluation for limitation of extension to 90 degrees; 40 percent evaluation for limitation of extension to 100 degrees; and 50 percent evaluation for limitation of extension to 110 degrees. Under Diagnostic Code 5208, a 20 percent rating is assigned where there is flexion of the forearm limited to 100 degrees and extension limited to 45 degrees. Also, Diagnostic Code 5213 provides for the evaluation of impairment of supination and pronation of the forearm. A 10 percent rating applies to limitation of supination to 30 degrees of less. A 20 percent rating applies where involving a major extremity corresponds to limitation of pronation if there is at least motion lost beyond the last quarter of arc, or the hand does not approach full pronation; or otherwise, there is loss of movement (i.e., bone fusion) where at least the hand is fixed near the middle of the arc, or there is moderate pronation. A 30 percent rating applies where there is limitation of pronation with motion lost beyond the middle of arc, or loss of bone fusion with the hand fixed in full pronation. A maximum 40 percent rating applies when there is loss of bone fusion with the hand fixed in supination or hyperpronation. When evaluating forearm and wrist injuries under Diagnostic Codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle or nerve injury are to be separately rated and combined not to exceed rating for loss of use of hand. The rating schedule further provides that normal range of motion for the elbow is from 0 degrees of extension to 145 degrees of flexion. Normal forearm supination is from 0 to 85 degrees. Normal forearm pronation is from 0 to 80 degrees. See 38 C.F.R. § 4.71a, Plate I. During the September 2006 VA examination, the Veteran reported that his bilateral elbow pain had gotten progressively worse over the years. He reported chronic intermittent pain in the bilateral elbows described as a sharp sensation, and daily flares lasting for two hours, with a pain level of 10/10. It was precipitated by activities and using the elbows, and was eased with rest, heat and aspirin. He did not wear a brace or use any type of assistive device. He could perform light chores around the house, with difficulty, and could perform other activities of daily living. He was right-hand dominant. On repetitive motion testing, the right elbow demonstrated flexion to 140 degrees; extension -10 degrees; supination 45 degrees; and pronation 80 degrees. The left elbow demonstrated flexion to 140 degrees; extension -25 degrees; supination 45 degrees; and pronation 80 degrees. The Veteran reported pain with motion, and pain when the elbows were palpated. The additional limitation of function due to repetitive use or flare-ups could not be determined without resort to mere speculation. No swelling, redness, or increase in warmth was appreciated. The x-rays showed a normal bilateral elbow series. The relevant diagnosis was bilateral elbow strain, tendonitis. Thereafter, on the VA examination of August 2011, the diagnosis was indicated at the outset of bilateral epicondylitis, and chronic strain. There were no flare-ups impacting functioning. Range of motion consisted of bilateral elbow flexion to 145 degrees; no limitation of elbow extension, bilaterally, all with no additional limitation of motion following repetitive-use testing. There was no localized tenderness or pain on palpation of the joints/soft tissue. Muscle strength was normal throughout. The Veteran did not have flail joint, joint fracture or impairment of supination or pronation. There was no history of joint replacement or other surgical procedures. Previous imaging studies had shown degenerative or traumatic arthritis of the elbows. A more recent x-ray showed normal bilateral elbows. The diagnosis was bilateral tendon inflammation (elbows), resolved, no limitations. The competent evidence does not support an increase in compensation for the Veteran's service-connected right and left elbow strain conditions. In this instance, the most pronounced limitation of motion findings actually originate from the earlier VA examination of September 2006, rather than the more recent August 2011. As indicated, the results on repetitive motion testing comprises in the right elbow flexion to 140 degrees; extension -10 degrees; supination 45 degrees; and pronation 80 degrees. The left elbow demonstrated flexion to 140 degrees; extension -25 degrees; supination 45 degrees; and pronation 80 degrees. These findings are relatively close to normal range of motion. They do not meet the criteria technically for a minimum 10 percent evaluation under Diagnostic Code 5206 (for flexion limited to 110 degrees). Diagnostic Code 5207 (for limitation of extension of the forearm to 60 degrees), Diagnostic Code 5208 (flexion of the forearm limited to 100 degrees and extension limited to 45 degrees), or Diagnostic Code 5213 (pertaining to impairment of supination and pronation of the forearm). The Board points out the lack of meeting even the requirements for a compensable evaluation not to call into question the existing disability rating (premised on noncompensable degenerative arthritis under Diagnostic Code 5003), but to merely explain why no higher rating is warranted. Nor is there any identifiable neurological impairment associated with the Veteran's bilateral elbow condition. Significantly, the August 2011 VA examiner considered the condition of the bilateral elbows to have effectively been resolved. Accordingly, the existing 10 percent evaluation for both right and left elbow conditions is being continued, under provisions of the rating schedule. Mood Disorder with Anxiety and Depression The VA Rating Schedule provides that psychiatric disorders other than eating disorders are to be evaluated according to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. This includes the condition of a mood disorder, not otherwise specified (NOS) under Diagnostic Code 9435. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Veteran underwent VA Compensation and Pension examination for mental health evaluation in August 2006, at which time he reported that he had had a business off-and-on for the past five years selling long distance. He reported that he was in the process of trying to start the company back up, and that he had some family problems to take care of that prevented him from working. He described difficulty sleeping because of his pain, and that he would take days off from work depending on the amount of sleep that he gets. He was divorced, and had one adult daughter with whom he had a good relationship. The Veteran himself noted that he did not see himself as particularly depressed and reported that a great deal of his depression was due to some marital problems he was having in his last marriage. He reported that he felt that he got rid of his depression when he went through the divorce. As a result, he reported that he was not then receiving any treatment for depression, although he had been on medication and in counseling in the past. He reported that he was sleeping poorly because of the increasing pain in his neck and shoulders. He reported that he would have a low energy level during the day, depending on how much sleep he got. He reported that he knew that it was bad for him to nap during the day, and he had to fight very hard not to fall asleep during the day. At the beginning of the year he went on a fast for spiritual reasons and lost a great deal of weight and was feeling good. However, he had now put back on all of the weight he had lost. He reported that he did seem to be more forgetful about things than he used to be, but attributed this largely to being preoccupied with issues such as his sister's surgery for cancer and his mother's illness. The Veteran reported that he had a very good social support system and that he was very active in his church and in the ministry. He also reported that he was very close to his family. He reported that he enjoyed fishing. He denied experiencing suicidal ideation. He reported that he would drink a glass of wine about two nights out of the week and that he would smoke marijuana on occasion, which he stated helped with the pain and also helped him sleep. He denied any legal problems. He reported that he had lost strength in his hands because of his elbow and wrist problems and reported that his pain had increased over the years. He reported that he was really not getting medication to control the pain. On mental status examination, the Veteran arrived early, was very neatly and cleanly dressed, and demonstrated good personal hygiene. He was pleasant and cooperative during the examination. Mood was somewhat dysphoric. Affect was full and reactive. Thought content and processes were within normal limits. There was no evidence of delusions or hallucinations. The Veteran maintained eye contact throughout. No inappropriate behavior was noted. The Veteran denied suicidal or homicidal ideation. He was able to maintain his personal hygiene and perform his activities of daily living. He was alert and oriented times four. There was no evidence of gross memory loss or impairment. Speech was linear and coherent. Speech was of normal rate and volume. The VA examiner's summary and conclusions observed that the Veteran reported minimal symptoms of depression at this time as it related to his chronic pain. He reported ongoing symptoms of depression since he injured his back while on active duty. He reported that his pain had become increasingly bad and that had continued his symptoms of depression. However, he himself admitted that he was not getting any treatment for depression because he felt a lot of it had dissipated after going through a divorce. He was now describing very mild symptoms of depression and it did appear likely that some of his depression was related to his chronic pain. The Veteran did report symptoms that occurred several days a week. He had had some difficulty maintaining employment but not because of psychiatric reasons. He reported that he had had difficulty sleeping because of pain and as a result, had missed time from work. The Veteran had not lost any time from work because of his depression, nor did the VA examiner believe that his depressive symptoms would have any impact on his employment functioning. The Veteran did have a good social support system in the area and reported that he did try to engage in some meaningful recreational pursuits. At this time, his prognosis was fairly good. However, if his pain were to worsen, the VA examiner did believe that he might experience an increase in his symptoms of depression. The Veteran was alert and oriented and did not demonstrate any significant impairment in judgment. He appeared competent to manage his finances. The diagnosis was mood disorder, due to a general medical condition (chronic pain) with depressive features. The assigned Global Assessment of Functioning (GAF) score was 67. On further VA examination of May 2011, the diagnosis indicated at the outset was mood disorder, and anxiety disorder. The Veteran was found to have those symptoms of a depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. The level of functional impairment was described as "occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication." A GAF was assigned in the range of 51 to 60. The Veteran was deemed capable of managing his financial affairs. In light of the above findings, the Board sees fit to continue the existing compensation scheme for the Veteran's service-connected mood disorder, with anxiety and depression. Regarding, initially, the time period preceding May 20, 2011, the Board considers a 30 percent disability evaluation to remain the best approximation of the severity of the Veteran's psychiatric condition. Pursuant to the VA rating schedule, a 30 percent evaluation corresponds to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 38 C.F.R. § 4.130. The August 2006 VA examination report shows symptomatology in accordance with this level of severity. While the Veteran on examination did have some depression attributable to pain, along with some loss of sleep and low energy level, primarily his depression was attributable to earlier marital problems which reportedly resolved when the relationship ended. He described a very good social support system, and was very close to his family. He had various recreational activities and social outlets. Moreover, a mental status examination though showing somewhat dysphoric mood, was otherwise entirely normal. The VA examiner characterized the extent of symptoms of depression as very mild, and without any impact on employment functioning. There was no psychiatric treatment or medication utilized at that time. The assigned GAF score was of 67. According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-R), a GAF score in the 61 to 70 range indicates some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. The assigned GAF of 67 consequently suggests a significant degree of retained functional capacity. The Veteran throughout the examination (and contemporaneous VA medical evidence) also did not objectively demonstrate any of the following characteristic symptoms of a higher 50 percent evaluation under the rating criteria, including: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Therefore, on the whole the evidence substantiates no higher than the existing 30 percent disability evaluation throughout the time period in question. The Board likewise finds that no higher than a 70 percent evaluation is assignable from May 20, 2011 onwards. Essentially, there is nothing to indicate or suggest the Veteran has had total occupational and social impairment. The most pronounced symptoms of the Veteran on the May 2011 VA examination were chronic sleep impairment, mild memory loss, and difficulty adapting to stressful circumstances. However, none of the characteristic symptoms constituent of a 100 percent rating were manifested, including: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Nor was there any general indication otherwise of total psychiatric impairment, particularly given the VA examiner's assessment of "mild or transient symptoms," and the assigned GAF score of 51 to 60. A GAF score in the 51 to 60 range is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Board understands that the Veteran's condition may have worsened some over time. Nonetheless, there is nothing in the record corresponding to total occupational social impairment, as to warrant a rating in excess of 70 percent since May 20, 2011. Conclusion Aside from the VA Rating Schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's musculoskeletal disabilities under evaluation, as well as psychiatric disability, present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's musculoskeletal symptoms as presented, including from his descriptions upon VA examination and on other occasions. As indicated, the Board has considered and ruled out any distinctly ratable neurological impairment. Nor is there any indication of mental health symptomatology outside the evaluative rubric of the rating criteria premised upon degree of social and occupational impairment. Thus, the Board cannot conclude that the Veteran's conditions are consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. Therefore, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is issuing a denial of the increased rating claims on appeal. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claims under review. The preponderance of the evidence is against the claims, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An evaluation higher than 20 percent for the low back sprain is denied. An evaluation higher than 10 percent for the right elbow strain is denied. An evaluation higher than 10 percent for the left elbow strain is denied. An evaluation higher than 10 percent for the neck ligament sprain is denied. Higher evaluations for the mood disorder with anxiety and depression, rated as 30-percent disabling prior to May 20, 2011, and as 70-percent disabling since, are denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs