Citation Nr: 1323029 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 03-18 551A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right wrist disorder, to include as secondary to the service-connected cervical spine disability. 3. Entitlement to service connection for a pulled groin muscle. 4. Entitlement to service connection for a left eye disorder. 5. Entitlement to an initial rating in excess of 20 percent from December 3, 2001, to July 14, 2004, for status post intracervical fusion, C4-C7. 6. Entitlement to a rating in excess of 20 percent from December 1, 2004, for status post intracervical fusion, C4-C7. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from July 1963 to January 1967. He also had National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2002 and September 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) New Orleans, Louisiana. In a June 2005 rating decision, the RO granted a temporary 100 percent disability rating for convalescence from intracervical fusion, effective from July 15, 2004 , through October 31, 2004. In a March 2006 rating decision, the RO extended the 100 percent temporary convalescence rating through November 30, 2004; the previously assigned 20 percent rating was continued from December 1, 2004. In February 2004, the Veteran testified at a hearing before a Decision Review Officer. In June 2012, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the claims file. The issues listed on the title page in addition to the issue of service connection for a right shoulder disorder were remanded in September 2012 to verify the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) during his National Guard service, to obtain additional treatment records and to afford the Veteran VA examinations. Except for the issues of service connection for a pulled groin muscle and a left eye disorder discussed in the remand below, review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also granted service connection for a left wrist disability in September 2012. In an October 2012 rating decision, the Appeals Management Center (AMC) effectuated the Board's grant and established service connection for carpal tunnel syndrome, cervical radiculopathy of the left wrist and left wrist degenerative changes. Although in an April 2013 supplemental statement of the case, the AMC addressed the issues of higher initial ratings for the left wrist disabilities, the Board observes that the Veteran has not actually appealed the disability ratings and/or effective dates assigned. Therefore, the Board concludes that such issues are not before it. Furthermore, as discussed in detail below, as the AMC granted service connection for cervical radiculopathy of the left wrist, the Board will not address such issue when determining whether the Veteran has associated objective abnormalities when evaluating his cervical spine disability. Additionally, following the Board's remand development, the AMC granted service connection for a right shoulder disability as secondary to the service-connected cervical spine in an April 2013 rating decision. Since the Veteran has not disagreed with the disability evaluation and/or effective date assigned, the Board concludes that only the issues listed on the title page remain on appeal. The issues of service connection for a pulled groin muscle and a left eye disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. A left knee disorder was not present during service, arthritis was not manifest within a year of separation from service, and a currently diagnosed left knee disorder did not develop as a result of any incident during service. 2. A right wrist disorder was not present during service, arthritis was not manifest within a year of separation from service, and a currently diagnosed right wrist disorder did not develop as a result of any incident during service and was not caused or aggravated by any service-connected disabilities. 3. From December 3, 2001, to July 14, 2004, status post intracervical fusion, C4-C7, did not cause severe limitation of motion, did not limit forward flexion to 15 degrees or less, had not resulted in ankylosis, and did not have associated objective neurological abnormalities for which separate ratings can be granted. 4. From December 1, 2004, status post intracervical fusion, C4-C7, has not caused severe limitation of motion, does not limit forward flexion to 15 degrees or less, has not resulted in ankylosis, and has not had associated objective neurological abnormalities (other than the service-connected left wrist radiculopathy) for which separate ratings can be granted. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. A right wrist disorder was not incurred or aggravated in service, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012); 38 C.F.R. § 3.310 (2006). 3. The criteria for an initial rating excess of 20 percent from December 3, 2001, to July 14, 2004, for status post intracervical fusion, C4-C7, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5243 (2012); 38 C.F.R. § 4.71a DC 5290 (2003). 4. The criteria for a rating excess of 20 percent from December 1, 2004, for status post intracervical fusion, C4-C7, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5243 (2012); 38 C.F.R. § 4.71a DC 5290 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letter dated in January 2002 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A letter dated in May 2008 notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran's claim for a higher initial rating for status post intracervical fusion, C4-C7, arises from his disagreement with the initial rating 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). Regardless, the May 2008 letter informed the Veteran of the criteria for assigning an effective date. See Dingess/Hartman, 19 Vet. App. 473. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and Social Security Administration (SSA) records. Pertinent VA examinations were obtained in June 2004 (left knee and cervical spine) and February 2013 (left knee, right wrist and cervical spine). 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. In reaching this conclusion, the case was remanded in September 2012, in part, to obtain additional private treatment records. The AMC sent the Veteran an Authorization and Consent to Release Information form in order to obtain additional records. However, the Veteran failed to return that form; consequently, additional private records were not obtained. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist is not a one-way street). The Veteran was also provided with a hearing related to his present claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing to fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal, but did not suggest the submission of any additional evidence. This was not necessary, however, because the Veteran fully described why he believed service connection was warranted for left knee and right wrist disorders and also described his cervical spine symptomatology. Based in part on the Veteran's testimony, the issues were remanded to obtain additional treatment records. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis A. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board observes that service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, for residuals of injury incurred or aggravated during INACDUTRA, or for residuals of an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002); 38 C.F.R. § 3.6 (2012). The presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 do not apply in the absence of the appellant securing Veteran status for the particular period in question. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Certain chronic diseases (e.g., arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of this appeal. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. 1. Left Knee The Veteran contends that he has a left knee disability related to an injury incurred in a motor vehicle accident during a period of ACDUTRA in September 1994. See, e.g., June 2012 Hearing Transcript (T.) at 6. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current left knee disorder became manifest or otherwise originated during his period of service or is otherwise related to his military service. There is no finding that any chronic left knee disorder was treated or diagnosed during service. The Veteran's enlistment examination in April 1977 and other examinations in October 1981, December 1985, December 1989 and February 1994 all revealed clinically normal lower extremities. In his May 1977, October 1981, December 1985, December 1989 and February 1994 reports of medical examination, he denied symptoms such as swollen or painful joints; arthritis, rheumatism, or bursitis; bone, joint or other deformity; and "trick" or locked knee. However, all of these examinations occurred prior to the September 1994 accident. The Veteran's STRs reflect that he was in a motor vehicle accident in September 1994 during a period of ACDUTRA. He had left knee bruises, but his knee was within normal limits. X-rays showed no evidence of fracture, dislocation or bone destruction. No left knee disorder was diagnosed in service following this injury. There is no indication in any of his STRs that he was treated for symptoms associated with a currently diagnosed left knee disorder. There is also no indication of a diagnosis of any left knee disorder in his STRs. Although his STRs clearly reflect left knee complaints after the accident, there is no indication that a chronic left knee disability resulted from that accident in service. The Veteran's contemporaneous service records fail to show that the onset of any left knee disorder occurred during service. The totality of the evidence fails to show that the onset of any current left knee disorder occurred during the Veteran's service. No medical professional has reported that the onset of any current left knee disorder began during the Veteran's military service. There is also no medical evidence of the manifestation of arthritis within a year of separation of service. X-rays in September 1998 showed some changes consistent with wear and tear. A May 1999 VA examination showed a diagnosis of possible anterolateral meniscus tear of the left knee; no opinion regarding the etiology was provided. A private treatment record dated in September 1999 shows that the Veteran was diagnosed with degenerative arthritis of the knees. None of the Veteran's treatment records contain any medical opinion indicating that arthritis was manifest within one year of his active duty. As the Veteran incurred an injury during his September 1994 ACDUTRA, the presumptive period applies to that period. However, there is no indication that the Veteran had arthritis within one year of that period. Rather, the earliest evidence is in 1998-1999. Therefore, the evidence fails to show that the Veteran had arthritis within the pertinent presumptive period. The pertinent medical evidence that has been presented shows a current diagnosis of arthritis; however, the evidence does not contain medical opinions convincingly relating any currently diagnosed left knee disorder to the Veteran's military service. The first indication of any left knee complaints is in April 1998 when the Veteran was diagnosed with pre-patellar bursitis with cellulitis. An April 2004 record from J.F., M.D. shows that he reported treating the Veteran since 1980. It was his opinion that it was highly probable that the 1994 motor vehicle accident may have caused or aggravated problems with his left knee. However, this opinion is contradicted by other medical evidence. The Veteran was afforded a VA examination in February 2013. He was diagnosed with osteoarthritis. The Veteran reported his in-service injury. The examiner reported that X-rays were negative in 1994. The Veteran reported that he continued to experience left knee pain and swelling. Following examination, the examiner opined that the Veteran's left knee osteoarthritis developed years after the motor vehicle accident, and that the o osteoarthritis was a normal part of aging. It was the examiner's opinion that it was less likely that the current left knee condition was related to injury sustained in the 1994 motor vehicle accident. The probative medical evidence simply fails to adequately establish any nexus between current arthritis and the Veteran's service. In this case, the April 2004 opinion from Dr. J.F. is speculative as he opined that the motor vehicle accident "may have" caused or aggravated problems with his left knee. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (by using the term "could," without supporting clinical data or other rationale, doctor's opinion simply was too speculative to provide the degree of certainty required for medical opinion). Thus, such opinion is speculative and therefore, is not probative. Service connection may not be based on a resort to speculation or possibility, and medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102; Warren v. Brown, 6 Vet. App. 4, 6 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Bostain v. West, 11 Vet. App. 124, 127 (1998). The only non-speculative opinion, that of the February 2013 VA examiner, indicates that the Veteran's arthritis is not related to his in-service injury. Rather, the examiner indicated that the Veteran's arthritis was a normal part of aging. This opinion is consistent with the X-rays in September 1998 that showed some changes consistent with wear and tear as opposed to a traumatic injury. The Board has noted that the Veteran's representative has asserted that the February 2013 examination is inadequate because it contains insufficient rationale, and because the examiner indicated that the most recent X-rays he saw were dated in 2004, and that he would want to request recent X-rays before he changes the diagnosis. With respect to the sufficiency of the rationale, the Board is of the opinion that the examiner adequately explained that his view of the 1998 X-ray reflects that it was consistent with consistent with age rather than injury. Earlier in the report, the examiner noted several factors which tend to support such a conclusion, including the fact that X-rays in service were negative. The examiner also noted that there was currently no objective evidence of painful motion, and no additional limitation following repetitive use. Testing for instability was also normal. The Board finds that in reviewing the report as a whole, the examiner's opinion was adequately supported. The examiner is competent to render an opinion as to whether findings noted in 1998 were consistent with changes due to aging rather than changes due to injury. With respect to the comment made at the end of the report regarding the examiner being unwilling to change his diagnosis without obtaining additional X-rays, the Board finds this statement to be inconsequential. The examiner did not give any indication that a current X-ray might change his conclusion regarding the lack of a nexus between a current left knee disorder and service. He based his negative nexus opinion on the negative X-ray in service, a 1998 X-ray showing what he described as age related findings, as well as a 2004 X-ray. No logical theory has been presented by the representative as to how a current X-ray almost 20 years after service might change the conclusion that there was no nexus which was made based on much more contemporaneous evidence from only a few years after service 1998 which the examiner found showed no changes due to injury. No medical professional has provided any non-speculative opinion indicating that any currently diagnosed left knee disorder is related to the Veteran's military service. Without competent evidence of an association between a left knee disorder and his active duty, service connection for a left knee disorder is not warranted. Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of a left knee disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). As such, his own assertions as to etiology have no probative value. Without evidence of the onset of a left knee disorder in service or competent evidence of an association between a left knee disorder and the Veteran's active duty, service connection for a left knee disorder is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a left knee disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a left knee disorder is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). 2. Right Wrist The Veteran contends that he has a right wrist disorder that is related to his service, to include being secondary to his service-connected cervical spine disability. See, e.g., T. at 27. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current right wrist disorder became manifest or otherwise originated during his period of service or is otherwise related to his military service, to include being secondary to the service-connected cervical spine disability. There is no finding that any chronic right wrist disorder was treated or diagnosed during service. The Veteran's enlistment examination in April 1977 and other examinations in October 1981, December 1985, December 1989 and February 1994 all revealed clinically normal upper extremities. In his May 1977, October 1981, December 1985, December 1989 and February 1994 reports of medical examination, he denied symptoms such as swollen or painful joints; arthritis, rheumatism, or bursitis; and bone, joint or other deformity. There is no indication in any of his STRs that he was treated for symptoms associated with a currently diagnosed right wrist disorder. Indeed, he was not treated for any right wrist complaints in service. The Veteran has not reported any specific in-service event, injury or disease to his right wrist. There is also no indication of a diagnosis of any right wrist disorder in his STRs. The Veteran's contemporaneous service records fail to show that the onset of any right wrist disorder occurred during service. The totality of the evidence fails to show that the onset of any current right wrist disorder occurred during the Veteran's service. No medical professional has reported that the onset of any current right wrist disorder began during the Veteran's military service. There is also no medical evidence of the manifestation of arthritis within a year of separation of service. The earliest diagnosis of arthritis is at the February 2013 VA examination when the Veteran was diagnosed with osteoarthritis. None of the Veteran's treatment records contain any medical opinion indicating that arthritis was manifest within one year of his active duty. Therefore, the evidence fails to show that the Veteran had arthritis within the pertinent presumptive period. The pertinent medical evidence that has been presented shows a current diagnosis of osteoarthritis and also suggests that the Veteran has carpal tunnel syndrome; however, the evidence does not contain medical opinions relating any currently diagnosed right wrist disorder to the Veteran's military service, to include being secondary to his service-connected cervical spine disability. In this case, while the Veteran's post-service treatment records contain numerous left wrist complaints, there are few right wrist complaints. At a June 2004 VA examination, the Veteran made left wrist, left knee and cervical spine complaints, but no right wrist complaints. An August 2006 treatment record indicates that the Veteran reported having right carpal tunnel release surgery in the 1970s; no records pertaining to such surgery were obtained. The case was remanded, in part, to obtain additional treatment records, but the Veteran failed to provide information such that those records could be obtained. The onset of his right carpal tunnel syndrome is unclear. No medical professional has opined that it is directly related to his military service. With regards to the Veteran's osteoarthritis, the only medical opinion of record is from the February 2013 examiner. At that examination, the Veteran, in addition to osteoarthritis, was also diagnosed with remote status post distal radial fracture. The Veteran reported right wrist pain for years. He reported being diagnosed with carpal tunnel syndrome. Following examination, the examiner opined that the Veteran was status post right distal radial fracture due to sledgehammer accident. That condition progressed to wrist osteoarthritis. It was the examiner's opinion that the right wrist condition was not due to or the result of the cervical spine nor had it been aggravated by the cervical spine disorder. As the examiner did not diagnose the Veteran with carpal tunnel syndrome, no opinion was provided. The probative medical evidence simply fails to adequately establish any nexus between a current right wrist disorder and the Veteran's service, to include being secondary to his service-connected cervical spine disability. In this case, the only medical opinion of record, that of the February 2013 VA examiner, indicates that the Veteran's osteoarthritis is not due to his military service. Rather, the examiner indicated that the Veteran's wrist disability was due to a sledgehammer accident (which the Board notes did not occur during service) . The examiner's opinion was premised upon a review of the Veteran's claims file, an examination of the Veteran, as well as the Veteran's reported history at the examination. None of the Veteran's pertinent treatment records pertaining to his cervical spine indicate that he has a right wrist disorder that is secondary to his cervical spine disability. No medical professional has provided any opinion indicating that any currently diagnosed right wrist disorder is related to the Veteran's military service. Without competent evidence of an association between a right wrist disorder and his active duty or his service-connected cervical spine disability, service connection for a right wrist disorder is not warranted. Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of a right wrist disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4. As such, his own assertions as to etiology have no probative value. Without evidence of the onset of a right wrist disorder in service or competent evidence of an association between a right wrist disorder and the Veteran's active duty, to include his service-connected cervical spine disability, service connection for a right wrist disorder is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a right wrist disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a right wrist disorder is denied. See 38 U.S.C.A §5107. B. Initial Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. The Court has indicated that a distinction must be made between a Veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's cervical spine disability as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. In this case, the Veteran has been diagnosed with status post intracervical fusion, C4-C7. This disability has been shown to cause limitation of motion of the cervical spine. This service-connected disability is currently rated as 20 percent disabling C7 from December 3, 2001, to July 14, 2004, and from December 1, 2004, under 38 C.F.R. § 4.71a, DC 5243, which evaluates impairment from Intervertebral Disc Syndrome. During the pendency of the Veteran's appeal, the regulations pertaining to evaluation of disabilities of the spine were amended. See 67 Fed. Reg. 54345 -54349 (Aug. 22, 2002) (effective September 23, 2002); See 68 Fed. Reg. 51454 -51456 (Aug. 27, 2003) (effective September 26, 2003). The changes made effective September 23, 2002, involve only changes to the rating of intervertebral disc syndrome (IVDS), evaluating this disability based on the occurrence of incapacitating episodes. The second change, effective September 26, 2003, renumbered all of the spine diagnostic codes, and provides for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a (2012). Because old and new criteria were effective during the period of consideration for this case, the Board must determine whether the revised version is more favorable to the Veteran. See VAOPGCPREC 7-2003. However, even if the Board finds the revised version more favorable, the reach of the new criteria can be no earlier than the effective date of that change. See VAOPGCPREC 3-2000. The RO considered the Veteran's cervical spine claim under the old and new criteria in the September 2004 rating decision on appeal and in the July 2005 statement of the case (SOC). Therefore, there is no prejudice to the Veteran for the Board to proceed with the adjudication of this appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). With respect to IVDS, prior to September 23, 2002, IVDS was evaluated under 38 C.F.R. § 4.71a, DC 5293. Under the criteria effective prior to September 23, 2002, a 20 percent rating was warranted for moderate symptoms with recurring attacks. 38 C.F.R. § 4.71a, DC 5293 (2002). A 40 percent rating was warranted for severe symptoms, with recurrent attacks and intermittent relief. Id. Pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief warranted a 60 percent rating. Id. DC 5293, in effect from September 23, 2002, to September 26, 2003, was used to evaluate IVDS (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Pursuant to DC 5293, a 20 percent evaluation was warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2003). Id. A 40 percent evaluation was warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent evaluation was warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. For purposes of evaluation, an incapacitating episode was a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Chronic orthopedic and neurologic manifestations meant orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that were present constantly, or nearly so. 38 C.F.R. § 4.71a, DC 5293, Note (1) (2003). When evaluating on the basis of chronic manifestations, orthopedic disabilities were evaluated using criteria for the most appropriate orthopedic diagnostic code or codes and neurologic disabilities were evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, DC 5293, Note (2) (2003). Since September 26, 2003, DC 5243 provides that IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Pursuant to DC 5243, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2012). A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1) defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. With respect to the rating criteria for spine disorders other than IVDS in effect prior to September 26, 2003, disabilities of the cervical spine could be rated under DCs 5285, 5286, 5287 and 5290. In this case, DCs 5285, 5286, and 5287 are inapplicable as DC 5285 rated residuals of fractured vertebra and DCs 5286 and 5287 rated ankylosis, which have not been shown. 38 C.F.R. § 4.71a, DCs 5285, 5286, 5287 (2003). Under prior DC 5290, which evaluates impairment from limitation of motion of the cervical spine, a 20 percent rating is warranted for moderate limitation of motion. 38 C.F.R. § 4.71a, DC 5290 (2003). A 40 percent rating is warranted for severe limitation of motion. Id. Since September 23, 2003, DCs 5235-5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 20 percent evaluation is for application with 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. 38 C.F.R. § 4.71a, DC 5242 (2012). A 30 percent evaluation is for application with forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is for application when there is unfavorable ankylosis of the entire cervical spine. Id. A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine. Id. Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. IVDS is evaluated under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent rating is warranted for IVDS (preoperatively or postoperatively) when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1), which follows the rating criteria, indicates that for purposes of evaluations under 5243, 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. Id. Based on the evidence of record, the Board concludes that a rating in excess of 20 percent is not warranted at any time from December 3, 2001, to July 14, 2004, and from December 1, 2004, under either the old or new criteria. Based on limitation of motion, under the old criteria, the pertinent evidence of record fails to show that the Veteran's cervical spine range of motion has approximated severe limitation of motion. Under the new criteria, the pertinent evidence of record fails to show that the Veteran's cervical spine range of motion has approximated forward flexion of 15 degrees or less or favorable ankylosis of the entire cervical spine, which would warrant the next higher rating of 30 percent. In this case, the Veteran's forward flexion has been shown to be no worse than 20 degrees at the February 2013 VA examination. Normal range of motion is 45 degrees of flexion. 38 C.F.R. § 4.71a, Plate V (2012). Prior to that, the Veteran was shown to have 30 degrees of forward flexion at the June 2004 VA examination. Although the February 2013 VA examination showed pain on motion, even with such pain, the Veteran was able to forward flex to 20 degrees. There was no additional loss of motion following repetition in February 2013. The Veteran did have functional loss and/or functional impairment in February 2013; he had pain on movement. Considering that, at worst, the Veteran's forward flexion was reduced by little more than half, the Board cannot conclude that such limitation equates to severe, which is necessary for a rating in excess of 20 percent under the old criteria. Furthermore, treatment records dated in September 2005, October 2005 and November 2005 all show that the Veteran had normal range of motion. Although a record dated in August 2005 indicates that his range of motion was decreased, the degrees of ranges of motion in all of these records were not shown. Despite the Veteran having decreased motion in one record, the other records showing normal ranges of motion supports the Board's conclusion that the Veteran's limitation of motion does not equate to severe. Therefore, a rating in excess of 20 percent based on limitation of motion under the old criteria is not warranted at any time during this appeal. Under the new criteria, neither VA examiner indicated that such decrease in motion shown on examination approximated forward flexion of 15 degrees or less or favorable ankylosis. Both examinations also failed to show ankylosis, either favorable or unfavorable. None of the Veteran's pertinent treatment records, or his contentions, indicate that he has ankylosis of the cervical spine. Furthermore, none of his treatment records show limitation of motion contemplated for by a 30 percent rating. Thus, the evidence does not indicate that a rating in excess of 20 percent based on limitation of motion under the new criteria is warranted at any time during this appeal. In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion is not warranted. See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like). As noted above, the February 2013 examiner specifically found that the Veteran did not have additional limitation of motion following repetition. The February 2013 examiner also specifically found that there was no muscle atrophy. The February 2013 VA examination report reflects that the Veteran's pain on motion and the functional loss it resulted in were taken into account. Furthermore, private treatment records in September 2005, October 2005, and November 2005 all show that the Veteran had normal muscle tone, bulk and strength. Accordingly, the criteria for a rating in excess of 20 percent for limitation of motion for the Veteran's service-connected status post intracervical fusion, C4-C7, have not been met. 38 C.F.R. § 4.71a, DC 5290 (2003); 38 C.F.R. § 4.71a, DC 5243 (2012). The evidence also does not show associated neurologic abnormalities for which separate ratings may be warranted. In reaching this conclusion, as the Veteran is already service-connected for carpal tunnel syndrome, cervical radiculopathy of the left wrist, the Board will consider whether he has other neurologic abnormalities aside from that disability. Although the Veteran's treatment records reflect complaints of radiating pain and weakness into his upper extremities, objective evidence of associated neurologic abnormalities other than the service-connected left wrist disability have not been shown. The February 2013 VA spine examiner found that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner also opined that the Veteran did not have any other neurologic abnormalities related to a cervical spine condition. Furthermore, a peripheral nerve conditions VA examination also in February 2013 shows that the Veteran was only diagnosed with left carpal tunnel syndrome. In this case, although the evidence does reflect subjective complaints, it fails to show that the Veteran has associated objective neurologic abnormalities other than the already service-connected left wrist disability. Therefore, the Board concludes that separate ratings for associated neurologic abnormalities other than the left wrist disability are not warranted. The Board has also considered whether a rating in excess of 20 percent for IVDS under any of the criteria in effect during this appeal is warranted. However, while the RO has assigned DC 5243, which evaluates impairment from IVDS, to the Veteran's disability, the evidence fails to show that he actually has IVDS. His treatment records do not confirm such diagnosis and the February 2013 VA examiner specifically found that the Veteran did not have IVDS. Furthermore, neither the rating decision on appeal nor the statement of the case and supplemental statements of the case pertaining to this issue show that the RO considered the rating criteria for IVDS applicable to the Veteran's disability. Rather, the RO has repeatedly evaluated the Veteran's disability based on the actual symptomatology consisting of limitation of motion. As the evidence fails to confirm that the Veteran has IVDS, the Board will not address whether a rating in excess of 20 percent is warranted as the rating criteria evaluating such disability are inapplicable. For these reasons, the Board finds that the criteria for a rating in excess of 20 percent for status post intracervical fusion, C4-C7, from December 3, 2001, to July 14, 2004, and from December 1, 2004, have not been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's cervical spine symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's cervical spine disability has resulted in interference with employment or activities of daily life which would warrant ratings in excess of 20 percent. Moreover, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Although the Veteran filed a claim for TDIU, which was denied in an unappealed March 2006 rating decision, the evidence does not show that his cervical spine disability alone renders him unemployable. ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right wrist disorder, to include as secondary to the service-connected cervical spine disability is denied. Entitlement to an initial rating in excess of 20 percent from December 3, 2001, to July 14, 2004, for status post intracervical fusion, C4-C7, is denied. Entitlement to a rating in excess of 20 percent from December 1, 2004, for status post intracervical fusion, C4-C7, is denied. REMAND Regrettably, a remand is necessary for the issues of service connection for a pulled groin muscle and a left eye disorder. These issues were previously remanded by the Board in September 2012 to verify the Veteran's periods of ACDUTRA and INACDUTRA as the Veteran's STRs showed a pulled groin muscle in July 1993, as well as eye infections in February 1994, in addition to private records from 1992 forward. The Veteran was discharged from the National Guard in September 1998. Pursuant to the Board's Remand, the AMC contacted the Louisiana National Guard and Office of the Adjutant General. Negative responses were received in February 2013. However, the Office of the Adjutant General suggested that the National Personnel Records Center (NPRC) be contacted. There is no indication that the AMC contacted the NPRC as suggested. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall, 11 Vet. App. 268. In this regard, a previous request to the NPRC to verify the Veteran's dates of ACDUTRA and INACDUTRA received a response in July 2003 that the record needed to respond had not yet been retired. In light of an earlier request to the NPRC indicating that such records were not yet available, in addition to the Office of the Adjutant General suggesting that the NPRC be contacted, the Board finds that another remand is necessary to verify the Veteran's dates of ACDUTRA and INACDUTRA. Additionally, the Veteran has not been afforded a VA examination for these disabilities. As regards the pulled groin muscle, at his June 2012 hearing, the Veteran testified regarding have current symptoms resulting from the July 1993 pulled groin muscle. T. at 33. If the Veteran's personnel records do reflect that the injury occurred during a period of ACDUTRA or INACDUTRA, then a VA examination is necessary to determine if the Veteran has any current residuals from that injury. As for the Veteran's left eye disability, as noted above, the Veteran's STRs show at least one instance of an eye infection. If the Veteran's personnel records confirm that his eye complaints were during periods of ACDUTRA, then a VA examination is necessary to determine if the Veteran's eye infections were incurred or aggravated during a period of ACDUTRA; and, if so, whether he has a current left eye disorder related to the in-service eye infections. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC to verify the Veteran's periods of ACDUTRA and INACDUTRA during his National Guard service from April 1977 to September 1998. If the NPRC indicates that another resource should be contacted, then send a request to that resource. If any such records are not available, the Veteran should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. If, and only if, the Veteran's personnel records show that the July 1993 pulled groin muscle occurred during a period of ACDUTRA or INACDUTRA, then accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed residuals of the pulled groin muscle that he may have. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed residuals of a pulled groin muscle shown on examination had its clinical onset in service or are otherwise related to service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. If, and only if, the Veteran's personnel records show that the in-service eye infection in February 1994 occurred during a period of ACDUTRA, then accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed left eye disorder that he may have. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any in-service eye infection was incurred or aggravated during a period of ACDUTRA and whether any diagnosed left eye disorder shown on examination had its clinical onset in service or is otherwise related to service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Ensure that the examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issues of service connection for a pulled groin muscle and a left eye disorder remaining on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs