Citation Nr: 1323620	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  06-25 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent for degenerative disc disease (DDD) of the cervical spine status post cervical fusion (excluding the period of a temporary total rating).

2.  Entitlement to an initial compensable evaluation for surgical scar associated with cervical spine DDD status post cervical fusion.

3.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion



WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active military service from October 1, 1991 to November 15, 1991.

This matter is before the Board of Veterans' Appeals (Board) following Board Remands in August 2009 and February 2013.  This matter was originally on appeal from a September 2005 rating decision of the Appeals Manage Center (AMC) in Washington D.C. and rating decisions dated in February 2006 and March 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Veteran initially had a hearing in January 2008 regarding the issues on appeal; however, the Acting Veterans Law Judge who held this hearing is no longer working in the same capacity.  The Veteran testified before the undersigned in October 2012.  In January 2013 a letter was sent in error to the Veteran offering her a hearing before a third Veterans Law Judge; however, the error is harmless as the Veteran waived her right to a third hearing.

Withdrawal of an issue on appeal may be made by the appellant or by his or her authorized representative in writing. 38 C.F.R. § 20.204.  The Board notes that in October 2009, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, requesting that the issue of entitlement to service connection for bilateral carpal tunnel be withdrawn.  Therefore, the issue is withdrawn and is no longer in appellate status.

Service connection for a low back disability and an acquired psychiatric disability both claimed as secondary to service-connected cervical spine disability and upper extremity radiculopathy were deferred in the November 2010 Decision Review Officer decision.  As these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are  referred to the AOJ for appropriate action.  

The issues of entitlement to an initial compensable evaluation for surgical scar associated with cervical spine DDD status post cervical fusion and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

At no time during the appeal period (excluding the period of a temporary total rating) has the Veteran's service-connected cervical spine DDD been manifested by unfavorable ankylosis of the entire cervical spine; nor has it resulted in incapacitating episodes having a total duration of at least four weeks during a twelve-month period.


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 30 percent for a cervical spine disability (excluding the period of a temporary total rating) have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5293 (2002) and 5243 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matter

Pursuant to the Board's February 2013 Remand, the Appeals Management Center (AMC) scheduled the Veteran for an orthopedic examination to determine the severity of her cervical spine disorder, adjudicated the claim under provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case.  Based on the foregoing actions, the Board finds that there has been compliance with the Board's February 2013 Remand.  Stegall v. West, 11 Vet. App. 268 (1998).

Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 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 or her representative, if any, 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).  Proper notice from VA 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.  

With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With respect to increased rating claims, section 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009) (Vazquez-Flores II); Vazquez-Flores v. Shinseki, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I). 

In this case, the Board notes that the issue on appeal arises from a notice of disagreement as to the initial rating assigned to the Veteran's cervical spine DDD, and as such, represents a "downstream" issue as referenced in VAOPGCPREC 8-2003 (December 22, 2003), summary published at 69 Fed. Reg. 25,180 (May 5, 2004), a precedent opinion of VA's General Counsel that is binding on the Board (see 38 U.S.C.A. 7104(c); 38 C.F.R. § 14.507).  The opinion states that if, in response to notice of its decision on a claim for which VA has already given the 38 U.S.C. § 5103(a) notice, VA receives a notice of disagreement that raises a new issue, 38 U.S.C. § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly-raised issue.  With regard to the instant case, the Board finds that adequate 38 U.S.C. § 5103(a) notice was provided as to the original claim for service connection in October 2003 and March 2005, and as such, the rating assignment issue on appeal falls within the exception for the applicability of 38 U.S.C.A. 
§ 5103(a).  Nonetheless, in May 2006, the Veteran was advised how VA determines disability ratings and specifically advised the Veteran that she should tell VA about or give to VA that may affect how VA assigns a disability evaluation included statements from employers as to job performance, lost time, or other information regarding how her condition affects her ability to work. 
  
Ideally, the notice required by 38 U.S.C.A. § 5103(a) 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ).  For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.  

The Veteran's service treatment records, VA medical treatment records, Social Security Administration (SSA) records, and identified private medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  

Moreover, during the Board hearings, the two acting Veterans Law Judges explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The Veteran was last accorded a VA examination in March 2013.  38 C.F.R. § 3.159(c)(4).  The March 2013 VA examiner addressed the severity of the Veteran's service-connected cervical spine DDD in conjunction with a review of the claims file and physical examination of and interview with the Veteran.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since she was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.  The March 2013 VA examination report is thorough and supported by VA outpatient treatment records.  The examination in this case is adequate upon which to base a decision. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, 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.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings".  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here the disability has not significantly changed during the relevant time period and a staged rating is unwarranted.  

The Board notes that service connection for radiculopathy of the right and left upper extremities was granted with 10 percent disability evaluations assigned effective August 25, 2003 by a DRO Decision dated in November 2010.  The Veteran did not appeal the DRO decision.  As such, the Board finds that the neurological manifestations of the Veteran's service-connected cervical spine disability are not on appeal.  As such, the Board will limit its discussion to the orthopedic manifestations of the cervical spine disability. 

In addition, the Veteran has been awarded temporary total disability rating for her service-connected cervical spine disability for the period from October 17, 2005 to January 31, 2006.  As a temporary total disability rating is a 100 percent rating, the maximum rating available, the Veteran's appeal for a higher initial evaluation for her cervical spine disability is moot for this period. 

On September 26, 2003, the rating criteria for all spinal disabilities were revised and published in the Federal Register.  See 66 Fed. Reg. 51454- 51458 (Sep. 26, 2003) (now codified as amended at 38 C.F.R. § 4.71(a), Diagnostic Codes 5235 to 5243).

Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a 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 more favorable to appellant should apply).  See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2005); 38 C.F.R. § 3.114 (2007).

Regulations in effect prior to September 26, 2003

Under 38 C.F.R. § 4.71a, Diagnostic Code 5287, unfavorable ankylosis of the cervical spine warranted a 40 percent rating and favorable ankylosis of the cervical spine warranted a 30 percent rating.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5290, slight limitation of motion of the cervical spine warranted a 10 percent rating, moderate limitation of motion of the cervical spine warranted a 20 percent rating, and severe limitation of motion of the cervical spine warranted a 30 percent rating.  

Prior to September 26, 2003, the applicable revisions to 38 C.F.R. § 4.71a, Diagnostic Code 5293, for rating intervertebral disc syndrome provided that preoperative or postoperative IVDS is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5293.  

Regulations in effect as of September 26, 2003

The diagnostic codes for rating diseases and injuries of the spine were re-designated as Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome).  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, the following apply:

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent rating.

Unfavorable ankylosis of the entire cervical spine warrants a 40 percent rating.

Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):(See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3):In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4):Round each range of motion measurement to the nearest five degrees.

Note (5):For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6):Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases 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 § 4.25.

Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted.

With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted.

With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted.

With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted.

Note(1): For purposes of evaluations under diagnostic code 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.

Note(2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion.  Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example.  38 C.F.R. § 4.40.

The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations.  The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

Thus, in order for a higher evaluation to be assigned to the Veteran's service-connected cervical spine disability, the evidence must show unfavorable ankylosis of the cervical spine or IVDS with incapacitating episodes having a total duration of at least 4 weeks.  

The Veteran underwent VA examination in April 2004 at which time she demonstrated right lateral bending from zero to 10 degrees, left lateral bending from zero to 5 degrees, extension from zero to 25 degrees, flexion from zero to 15 degrees, right rotation from zero to 30 degrees, and left rotation from zero to 20 degrees.  

In a November 2004 letter from Dr. J.E.F., he states that the Veteran has decreased neck and arm range of motion.  

The Veteran underwent VA examination in August 2005 at which time she demonstrated forward flexion to 5 degrees, extension to 10 degrees, right and left lateral flexion to 5 degrees, and right and left rotation to 10 degrees. 

In a February 2005 letter from Dr. G.H.K., he states that the Veteran had restricted range of motion in her neck and exaggerated pain symptomatology as well.  Dr. G.H.K. said that x-rays of the cervical spine showed C-2 mild degenerative disc disease.  

A March 2005 private neurology clinic consultation note indicates that the Veteran noted that in April 2004 she was a passenger in a motor vehicle accident in which the car in which she was riding struck another head on.  Physical examination demonstrated that she was slow and hesitant in moving her neck in all direction, but on passive range of motion, her neck actually moved surprisingly easy, and there was little limitation in range of motion.  

An April 2005 private neurology clinic consultation note indicates that a cervical MRI scan that had been obtained the year prior demonstrated at least two areas of central disc herniation with cord compression.  

A July 2005 private orthopedic record notes that the Veteran had full range of motion of her neck.  It also notes that the Veteran had according to an MRI, she had quite severe stenosis at a couple of levels due to a congenitally small canal and then degenerative disease and facet hypertrophy.  A September 2006 private orthopedic record notes that CT myelogram of the cervical spine showed stenosis at C4-5, C5-6, and C6-7.  She had some degeneration of her disc which caused some osteophyte formation but she had congenital stenosis centrally and it was pretty severe at C5-6.

The Veteran underwent long decompression with a corpectomy and simple fusion in October 2005.  Operative report indicates that the Veteran underwent two procedures:  excision of degenerative disks C4-5, C5-6, and C6-7 utilizing corpectomy of the body of C5 and C6 as well as anterior cervical fusion C4 to C7 utilizing local autograft bone, Pyramesh cage, and anterior plating.

The Veteran underwent VA examination in January 2006 at which time she demonstrated right and left lateral bending from zero to 15 degrees, extension from zero to 25 degrees, flexion from zero to 15 degrees, right rotation from zero to 15 degrees, and left rotation from zero to 25 degrees.  There was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use.
 
The Veteran underwent VA examination in October 2006 at which time she demonstrated 15 degrees of flexion, 15 degrees of extension, 10 degrees of lateral bending in each direction, and 25 degrees of rotation in each direction.  There were no additional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use.

A private medical evaluation dated in December 2006 by Dr. G.D.S. indicates that motion of the cervical spine was restricted especially in right and left lateral flexion and in left lateral rotation but that forward flexion and extension were fairly good although she did have pain at the extremes of all of the motions.  

 Correspondence dated in January 2008 and February 2008 by Dr. J.E.F. indicate that the Veteran had only 10 degrees forward flexion and 10 degrees of lateral bending.  In August 2011, Dr. J.E.F. noted that the Veteran was on bed rest.   

The Veteran underwent VA examination in December 2009 at which time she indicated no physician-directed bed rest.  The Veteran demonstrated less than 10 degrees of motion in all planes with pain on all attempts.  There was no additional limitation by pain, fatigue, weakness, or lack of endurance.   

The Veteran underwent VA examination in March 2013 at which time she denied any incapacitating episodes over the prior 12 months due to IVDS.  The Veteran demonstrated 5 degrees of motion in all planes with pain on all attempts.  The Veteran was unable to perform repetitive-use testing.  The examiner noted,

It is my opinion that there is not evidence for ankylosis.  ...  She has very limited motion of her neck.  Cervical fusion can improve[] range of motion [] but typically mult[i]level ACDF cause[s] a[] reduction at follow-up [], so a limitation of motion would be a possible outcome but not to the level reported by the veteran.  I did not find radiographic evidence of fusion failure, or progressive degenerative changes which could account for ankylosis of the cervical spine.  ...     
 
Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 30 percent for the Veteran's service-connected cervical spine DDD.  There is no probative evidence of unfavorable ankylosis of the cervical spine or incapacitating episodes having a total duration of at least 4 weeks during a 12-month period to warrant consideration of a 40 percent rating under Diagnostic Codes 5287 (2002) or 5243 (2012).  

The Board has considered whether a higher evaluation is warranted under an alternate diagnostic code.  In this case, however, there is no evidence of residuals of a fracture of any cervical vertebra or fusion of all of the cervical segments to support a higher evaluation under Diagnostic Code 5285.  38 C.F.R. § 4.71a (2002).

The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher evaluation for the service-connected cervical spine disability.  DeLuca, 8 Vet. App. at 202.  It is not disputed that the Veteran has severe limitation of cervical spine motion, that there is pain on motion, and that limited motion of the cervical segment of the spine results in a certain level of functional loss.  There is, however, a lack of objective medical evidence showing that the Veteran suffers any additional measurable functional loss and/or limitation of motion during flare-ups or with use. 

The Board has considered the Veteran's lay statements that describe pain and discomfort.  The Veteran is certainly competent to describe her observations and the Board finds their statements are credible.  In this case, however, the Board finds the objective medical findings by skilled professionals are more persuasive which, as discussed above do not support a higher rating.  

The Board is aware that an extraschedular rating is a component of an increased rating claim.  Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1).  If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. 
§ 3.321(b)(1) (2008).  In the present case, the Board finds no evidence that the Veteran's service-connected cervical spine disability presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1).  

The criteria pertaining to spine disabilities in the Rating Schedule focus on limitation of motion due to pain, stiffness, or aching.  38 C.F.R. § 4.71a, Diagnostic Codes 5285 to 5295 (2002) and 5235 to 5243 (2012).  As discussed above, such symptomatology describes the Veteran's current disability picture.  Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted.  Id. 

Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Entitlement to an initial evaluation in excess of 30 percent for cervical spine DDD status post cervical fusion is denied.


REMAND

Service connection for surgical scar associated with degenerative disc disease, cervical spine, status post cervical fusion was established in a March 2013 rating decision and a noncompensable evaluation was assigned.  The Veteran submitted a Notice of Disagreement with regard to the noncompensable rating.  As such, the RO must now issue a Statement of the Case (SOC) and provide the Veteran with an opportunity to perfect her appeal as to this issue.  Therefore, the appropriate Board action is to remand the issue to the RO for the issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).

The evidence suggests that the Veteran may be unemployable due to her service-connected disabilities.  Under the duty to assist, she should be afforded a TDIU VA examination to determine whether she is able to be gainfully employed in light of her service-connected disabilities.  

Accordingly, the case is REMANDED for the following action:

1.  After ensuring that any actions needed to comply with the VCAA, the Veteran and her representative should be provided a Statement of the Case as to the issue of entitlement to an initial compensable evaluation for surgical scar associated with degenerative disc disease, cervical spine, status post cervical fusion.  The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board.  See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b).  If a timely substantive appeal is not filed, the claim should not be certified to the Board.  If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate.

2.  After the above has been completed, the Veteran should be scheduled for a VA TDIU examination to determine the nature, extent and severity of all her service-connected disabilities.  The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished.

Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of the combination of her service-connected disabilities.

The term "at least as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

The examiner should consider the Veteran's education, experience, and occupational background in determining whether she is unable to secure or follow a gainful occupation in light of her service-connected disabilities.

To the extent possible, the examiner should distinguish symptoms and impairment attributable to the Veteran's service-connected disorders from those attributable to any other diagnosed disorders.

The examiner is requested to provide a complete rationale for his or her opinion, based on his or her clinical experience and medical expertise.

3.  The case should be reviewed on the basis of any additional evidence.  If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
M. Mac
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs