Citation Nr: 1321023 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 03-23 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right hand disorder. 2. Entitlement to service connection for a left hand disorder. 3. Entitlement to an initial rating higher than 10 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the cervical spine (cervical spine disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. By rating decision in September 2002, service connection was denied for bilateral hand disorders and a cervical spine disorder. The Veteran appealed these decisions. In March 2005, the Veteran testified at a hearing at the RO before the undersigned Acting Veterans Law Judge (AVLJ) of the Board. In May 2006, the Board, in part, remanded the claims for service connection for bilateral hand disorders. By rating decision in February 2010, service connection was granted for DDD and DJD of the cervical spine, and a 10 percent evaluation was assigned effective from October 1, 2000. The Veteran appealed this initial evaluation. In November 2010, the Board in part, remanded the issues of service connection for bilateral hand disorders. In September 2012, the Board again remanded the issues of service connection for bilateral hand disorders; and, entitlement to an initial evaluation for DDD and DJD of the cervical spine, in excess of 10 percent. In a March 2013 rating decision, the RO granted service connection for radiculopathy of the right upper extremity and left upper extremity and assigned 10 percent ratings for each extremity, effective January 8, 2013. The Veteran has not expressed disagreement with the evaluations or the effective dates assigned, and thus are not part of the current appeal. The appeal as to entitlement to service connection for right hand and left hand disorders is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be advised if further action is required on his part. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT Since October 1, 2000, the Veteran's cervical DDD and DJD are not shown to have been manifested by moderate limitation of motion, moderate intervertebral disc syndrome with recurring attacks, forward flexion of the cervical spine greater than 15degrees but not greater than 30 degrees, a combined range of motion of the cervical spine not greater than 170 degrees; or have muscle spasms, or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for an initial rating for DDD and DJD of the cervical spine (cervical spine disability), in excess of 10 percent disabling from October 1, 2000 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5290 (2002), Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act 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); 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). The Veteran's increased rating claim arises from an appeal of the initial evaluation 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 as to this issue. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him/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 service treatment records, Social Security Administration (SSA) determination records, as well as post-service reports of VA and private treatment and VA examination reports. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no additional 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 claim. In June 2013, the Veteran submitted additional records without a waiver of initial consideration of that evidence by the agency of original jurisdiction. The Board finds that this evidence is not pertinent to the issue being decided in this decision; rather, it pertains to the Veteran's upper extremities (which claims are being remanded). Additionally, in the attached statement from the Veteran, he addresses only the claims for the hand disabilities, which further supports the Board's conclusion that the Veteran did not submit this evidence in connection with his claim for increase for the cervical spine. For these reasons, the Board finds that it need not seek a waiver from the Veteran or his representative before deciding the claim for increase for the cervical spine. In 2005, the Veteran presented testimony at a hearing before the undersigned Acting Veterans Law Judge. At that time, the issue was entitlement to service connection for a cervical spine disability and not entitlement to a higher rating. Thus, the provisions of 38 C.F.R. § 3.103 do not apply to the 2005 hearing with respect to this claim. Also, the Veteran was afforded VA examinations, most recently in January 2013, to evaluate the severity of his cervical back, and peripheral nerve disabilities. The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the pertinent medical history, lay assertions and current complaints, and because it describes the cervical spine symptomatology in 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 cervical back symptoms have materially increased in severity since the most recent 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 the Veteran 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). II. Legal Criteria Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet App 119, 126-27 (1999). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection from October 1, 2000, to the present time. The Board's adjudication of this claim accordingly satisfies the requirements of Fenderson. Disabilities of the spine The Board notes that the rating schedule for the spine was amended multiple times during the appeal period at issue. Prior to 2003, the rating schedule assigned Diagnostic Codes 5285 through 5295 for the spine. Amendments were made to 5293 (intervertebral disc syndrome), 5294 (sacro-iliac injury), and 5295 (lumbar strain), between 2000 and 2003. As will be further explained below, in September 26, 2003, the entire rating schedule with respect to the spine was amended and Diagnostic Codes 5235 through 5243 were thereafter assigned to the spine. Therefore, the Board will evaluate the Veteran's claim under both the criteria in the VA Schedule for Rating Disabilities in effect at the time of his filing and the current regulations in order to ascertain which version would accord him the highest rating. According to VAOPGCPREC 7-2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. Id. However, none of the above cases or General Counsel opinions prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that the Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.71a to the period on or after the effective date of the new regulations. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the Veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may be applied only as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3- 2000 (Apr. 10, 2000). Diagnostic Code 5287, applicable prior to September 26, 2003, assigned a 30 percent evaluation for favorable ankylosis of the cervical spine; unfavorable ankylosis warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (2002). Diagnostic Code 5290, applicable prior to September 26, 2003, assigned a 10 percent evaluation for slight limitation of motion of the cervical spine; a 20 percent evaluation is assigned with moderate limitation of motion, and a 30 percent evaluation is assigned with severe limitation of motion of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002). The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5293, which existed prior to September 2002, assigned a 60 percent rating for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief. A 40 percent rating was assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief, a 20 percent rating when moderate with recurrent attacks, a 10 percent rating when mild, and a noncompensable rating for postoperative, cured. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (September 23, 2002). The rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345 - 54,349 (August 22, 2002). Under the interim revised criteria of Diagnostic Code 5293, effective September 23, 2002, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation. A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent rating is assigned with the incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the post appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine. This update included a renumbering of the diagnostic codes pertinent to back ratings. According to that renumbering, Diagnostic Codes 5237 through 5243 are now applicable to the spine. Of particular interest in this instance is Diagnostic Code 5237 which now governs ratings of lumbosacral or cervical strain, 5242 which now governs degenerative arthritis of the spine, and 5243 which now governs intervertebral disc syndrome. Disabilities of the spine are now evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and 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. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The General Rating Formula pertinent the and cervical spine provide a 10 percent rating for 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 or more of the height. A rating of 20 percent is assigned for 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 and guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine. A rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion is 0 to 45 degrees, and left and right later rotation is 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. General Rating Formula, Note (2). Although the criteria under Diagnostic Code 5290 were less defined than the current criteria and numerical ranges of motion were not provided in the prior rating criteria, guidance can be obtained from the amended regulations. In adopting specific ranges of motion to define what is normal, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). In other words, even though pre-2003 regulations did not define normal range of motion for the cervical spine, the current definition is based on medical guidelines in existence since 1984, and the Board can consider the ranges of motion to rating spine disabilities under the old criteria. Intervertebral Disc Syndrome (IVDS), Code (5243), is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two week but less than four weeks during the past twelve months, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Code 5243. VA regulations provide that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula Note (1). When evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, functional loss of a joint due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 (regarding arthritis) are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Analysis On careful review of the record, the Board finds the preponderance of the evidence is against the claim for a higher initial rating in excess of 10 percent for the service-connected cervical spine disability. Initially, the Board notes that the Veteran has specifically denied having incapacitating episodes during the appeal period, and thus this criteria as of 2002 would not be applicable to his claim for increase. Considering the former criteria for the period prior to September 2003, the preponderance of the evidence is against a finding that the Veteran has moderate limitation of cervical motion or moderate intervertebral disc syndrome symptoms. For example, a May 2000 VA examination report shows that the Veteran's cervical spine had 65 degrees of flexion, 50 degrees of extension, 40 degrees of bilateral lateral flexion, and 55 degrees of bilateral rotation. The examiner concluded, "There is full range of motion without pain." The Veteran did not report any upper extremity symptoms associated with the cervical spine. In August 2000, the Veteran reported waking up with a stiff neck and having to move his neck with caution. An October 2000 private medical record shows that the Veteran had 55 degrees of flexion, 55 degrees of extension, 30 degrees of right lateral flexion, 35 degrees of left lateral flexion, 65 degrees of right rotation, and 80 degrees of left rotation. Thus, on two occasions, the Veteran had flexion and extension greater than the maximum range of motion as contemplated by VA (maximum is 45 degrees). The examiner specifically noted that there was no radiation of the pain into the arms. A May 2002 VA treatment record shows the Veteran complained of neck pain. On examination, the examiner found there was no tenderness. In December 2002, the Veteran reported that he had pain in his neck all day long, which he described as throbbing. When the Veteran was seen by VA in August 2003, he noted that he had been in a motor vehicle accident, but that his neck was back to the full baseline with no problems. Thus, prior to the change in the criteria, the evidence did not show that the Veteran had moderate limitation of motion of the cervical spine. It also did not show that the Veteran was reporting symptoms associated with his upper extremities to warrant consideration of Diagnostic Code 5293. However, even considering such Diagnostic Code, the Veteran's symptoms associated with the cervical spine were not moderately disabling. As of September 2003, cervical forward flexion was consistently greater than 30 degrees. For example, in June 2005, he had flexion to 30 degrees without pain, but was able to flex to 35 degrees with pain. He had extension of 25 degrees without pain and 30 degrees with pain, bilateral lateral flexion to 25 degrees with pain and 30 degrees with pain, and bilateral rotation to 50 degrees without pain and 55 degrees with pain. The combined range of motion was 205 degrees without pain and 235 degrees with pain. Under the amended criteria, it specifically states to rate "with or without symptoms such as pain, stiffness, or aching in the area." Thus, the Board finds that the Veteran's flexion was to 35 degrees because he could reach that motion with pain. While 30 degrees of flexion would warrant the next higher rating, the Board finds that by taking pain into account, the Veteran's flexion is to 35 degrees. Even if the Board chose to find that at that time, the Veteran had 30 degrees of flexion, the evidence on the whole does not show that the Veteran has flexion limited to 30 degrees. The Board also finds that the 10 percent rating contemplates exacerbations of the disability. 38 C.F.R. § 4.1 (degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). In January 2005, a private examiner found that the Veteran had full motion of the cervical spine, which supports the Board's conclusion that the Veteran's motion may have been exacerbated at the time of the June 2004 VA examination. In fact, this was the only time that the Veteran's range of motion was less than 40 degrees, which fact will be laid out in more detail below. Going back to the June 2004 VA examination report, the examiner found there was no tenderness and no focal neurological findings in the way of deep tendon reflexes. The examiner also found that the Veteran's range of motion was not additionally limited by pain, fatigue, or weakness. When the Veteran saw a private physician in January 2005, the examiner reported the Veteran had full motion of the cervical spine and that there was negative paraspinal muscle spasms. He found the Veteran had some posterior spinal tenderness. The Veteran saw the private physician again in March 2005, and again the examiner described the Veteran's cervical spine as having full range of motion without crepitance. He had normal reflexes at the wrist and motor strength was 5/5 in the upper extremities. When the Veteran was seen in April 2005, he reported that his neck pain was gradually worsening over the past year and rated his pain at a level 2 on a scale of 1 to 10, with 10 being the worst. The examiner noted that the Veteran demonstrated no specific areas of point tenderness. The examiner described the Veteran's flexion and extension as being "within functional limits" (he did not report the specific ranges of motion for these two ranges). Rotation was 70 degrees bilaterally with a chief complaint of pain with right rotation. Lateral bending was to 40 degrees, bilaterally. When the examiner reported the specific number for the ranges of motion, such ranges are only slightly lower than full. In April 2006, the Veteran reported that his neck had gotten stiffer and denied any radicular symptoms. Again, the examiner reported that the Veteran's flexion and extension were within "functional limits" without reporting the specific ranges. Right rotation was limited by 50 percent. Left rotation was "grossly 60 percent of normal limits" and right and left side bending were 60 percent and 70 percent of normal limits, respectively. In June 2006, the same private physician described the Veteran's flexion as being within functional limits. An April 2007 private medical record shows that the examiner described the Veteran as having "mildly limited [] flexion and right rotation." In January 2008, when seen by VA, the Veteran reported recurrent neck pain, which he noted had been significant in the past but was "not really bothering" him at this time. In November 2008, the Veteran was in a motor vehicle accident, which caused an increase in his cervical spine pain; however, it was not sufficient enough to warrant a higher rating. For example, the Veteran was seen by a private examiner very soon after the accident. The examiner stated there was no pain when the Veteran turned to the right, flexed, or extended his neck. The Veteran was seen the following month, and the examiner noted the Veteran reported that this neck was "doing really well." He stated the Veteran described feeling almost as good as he did before the accident. The Veteran was seen regularly after that and his neck was still doing well in January and February 2009. In April 2009, when he was seen by VA, the examiner noted that the Veteran's range of motion was "mildly decreased." In June 2009, a private examiner described the Veteran's range of motion as "good." In July 2009, a VA examiner stated that the Veteran's range of motion "appear[ed] grossly normal." Such clinical findings do not establish moderate limitation of motion of the cervical spine or moderate intervertebral disc syndrome with recurring attacks, forward flexion of the cervical spine of 30 degrees or less, a combined range of motion of the cervical spine of 170 degrees or less, muscle spasms, or guarding severe enough to result in an abnormal gait or abnormal spinal contour. At the time of the December 2009 VA examination, the Veteran reported decreased motion, stiffness, spasms and pain. He described the severity of his pain as moderate, which was constant and occurred on a daily basis. He described having severe flare-ups. Upon physical examination, the examiner found no spasm, atrophy, guarding, or weakness. There was tenderness. The examiner made a specific finding that there was no abnormal spinal contour. The Veteran's flexion was to 45 degrees, which is full. He had 35 degrees of extension, 30 degrees of left lateral flexion, 70 degrees of left lateral rotation, 35 degrees of right lateral flexion, and 60 degrees of right lateral rotation. These ranges combine to 275 degrees. The examiner found there was objective evidence of pain on active range of motion, but that motion was not limited after three repetitions. In July 2009, the Veteran reported that his pain level was 2 out of 10. The ranges of motion of the Veteran's cervical spine do not fall within the criteria contemplated by the 20 percent rating under either the former criteria or the amended criteria. The Veteran underwent a VA examination in January 2013. The examiner was asked if the Veteran reported that flare-ups impacted the function of the cervical spine, and she answered, "No." The Veteran had 40 degrees of flexion with pain beginning at 10 degrees. He had 45 degrees or greater of extension with pain beginning at 10 degrees. Right lateral flexion was 35 degrees with pain beginning at 30 degrees. Left lateral flexion was 20 degrees with pain beginning at 10 degrees. Right rotation was to 45 degrees with pain beginning at 20 degrees. Left rotation was 60 degrees with pain beginning at 55 degrees. The Veteran was able to perform repetitive testing and he did not have any additional loss of range of motion following the repetitive testing. The examiner concluded the Veteran had functional loss due to less movement than normal and pain. She also found the Veteran had localized tenderness and guarding or muscle spasm, but that such did not result in an abnormal spinal contour. The examiner found no muscle atrophy, and that the Veteran had 5/5 strength and normal reflexes. Again, the Board finds that the Veteran's ranges of motion are those reported even with pain, as the Rating Schedule notes that the ranges of motion include pain, stiffness and/or aching. In other words, the Board finds the range of motion are 40 degrees of flexion, 45 degrees of extension, 35 degrees of right lateral flexion, 20 degrees of left lateral flexion, 45 degrees of right rotation, and 60 degrees of left rotation, which combines to 245 degrees. None of these criteria are indicative of moderate limitation of motion or moderate intervertebral disc syndrome, flexion 30 degrees or less, or a combined range of motion of 170 degrees. The Board has considered the Veteran's functional impairment and finds that the Veteran's overall functional impairment shown during the appeal period is no more than slight in degree. See DeLuca, supra. The Veteran has reported that his functional impairment has been severe or that he has had severe flare-ups; however, the Board finds that in the 13 years that this claim has been pending that the documented evidence does not support his allegation of severe functional impairment. In the January 2013 VA examination report, the examiner found there was no atrophy associated with the Veteran's cervical spine. With the number of complaints made by the Veteran over the years, it would seem that there would be some evidence of atrophy or weakness (the Veteran's strength in January 2013 was 5/5). The lack of atrophy refutes the Veteran's allegations of severe flare-ups or pain. The Board accords more probative value to the objective clinical findings made by medical professionals than the Veteran's own statements, as the objective evidence has been consistent in showing that the Veteran's cervical spine disability is not moderately disabling. On this note, in the January 2013 VA examination, the examiner noted that the cervical spine disorder impacted the Veteran's ability to work in the past due to daily headaches which were triggered by his neck pain, but that his headaches had been alleviated since he stopped working in 2008. The Board notes that in reading through the voluminous medical records in the claims file, the Veteran did not attribute headaches to his cervical spine nor did a medical professional. The Veteran reported headaches here and there over the years, but he did not allege that they were due to his cervical spine or that they were impacting his work. Thus, this allegation by the Veteran to the January 2013 VA examiner is accorded little, if any, weight, as the Board finds such report of fact to be not credible, since the Veteran did not report such fact previously, and the medical records in the claims cover a period of at least 13 years. Additionally, in going through the evidence to see what functional impairment other examiners found, the Board finds that the preponderance of the evidence is against a finding that the Veteran has anymore than slight or mild fracture impairment. For example, in June 2004, the examiner stated the deep tendon reflexes were normal and that range of motion was not additionally limited by pain, fatigue or weakness. In March 2005, the examiner described the Veteran's motor strength as 5/5. In December 2009, the Veteran's ranges of motion did not change after three repetitions. The evidence as a whole shows that the Veteran's functional impairment is not moderate. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. "[I]nitially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. The Court provided that "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Turning to the threshold inquiry, the Board notes that the criteria of 38 C.F.R. § 4.71a expressly contemplate the Veteran's symptoms throughout the appeal period. The Veteran's ranges of motion of the cervical spine have been reported throughout the appeal period and meet the criteria for slight limitation of motion and no more than slight intervertebral disc syndrome and the criteria described under the 10 percent rating under the amended criteria. The Board has laid out the facts above, which show that his ranges of motion are slightly limited. The Veteran has reported pain and stiffness throughout the appeal period, and such symptoms are contemplated under the criteria. The reason a person has limitation of motion of the cervical spine is because it is painful to move the next beyond a certain point. Stiffness is contemplated with limitation of motion, as the neck cannot move freely and hence, there is limitation of motion. The Veteran's ranges of motion as of the change in the criteria fall squarely in the 10 percent criteria. The amended criteria specifically contemplate pain and stiffness, which are the Veteran's most frequent complaints regarding the cervical spine. For these reasons, the Board concludes that the rating criteria reasonably describe the Veteran's cervical spine disability and symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). During the appeal, the Veteran has been awarded a total rating for compensation based upon individual unemployability as of 2008. Thus, entitlement to that benefits is not part of the Veteran's claim for increase. ORDER An initial disability rating greater than 10 percent for DDD and DJD of the cervical spine is denied. REMAND The claims of entitlement to service connection for bilateral hand disorders was remanded by the Board in September 2012 to obtain additional information from the Veteran and to schedule an appropriate VA examination. Subsequently the Veteran underwent a January 2013 VA examination which in part found radiculopathy of the left and right upper extremities as secondary to the service connected cervical spine disorder. This included decreased sensations in the bilateral hands. Regarding the claimed bilateral hand strains, the examiner opined that these were independent of the radiculopathy of the left and right upper extremities; however, the examiner neglected to provide a rationale for this opinion. Thus, the Board is remanding the claim to request that the January 2013 examiner provide a rationale for her opinion that the bilateral hand strains are independent of the radiculopathy. The Board regrets the additional delay in adjudication of the Veteran's claims that a further remand will entail; however it is necessary to ensure that the Veteran receives all consideration due him under the law. Accordingly, the case is REMANDED for the following action: 1. Return the claims file (including any relevant records in virtual VA) to the VA examiner who conducted the January 2013 VA examination to allow the examiner the opportunity to explain her conclusion that the bilateral hand strain "is independent of the problems in the neck." For example, upon what facts and medical principles are the bases of this opinion? 2. Then readjudicate the claims. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs