Citation Nr: 1323775 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-24 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial evaluation in excess of 60 percent for cervical disc disease with radicular symptoms for the period from September 23, 2002 to December 12, 2012. 2. Entitlement to an evaluation in excess of 20 percent for cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) from December 13, 2012. 3. Entitlement to an initial evaluation in excess of 40 percent for radiculopathy of the right (major) upper extremity from December 13, 2012. 4. Entitlement to an initial evaluation in excess of 30 percent for radiculopathy of the left (minor) upper extremity from December 13, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to November 1979. Thereafter, he served on periods of active duty for training and inactive duty training in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran service connection and a 60 percent evaluation for cervical disc disease with radicular symptoms, effective June 5, 2001 (the date of his original claim for VA compensation for this disability). As will be further discussed below, up until December 13, 2012, this was the Veteran's sole service-connected disability. The Veteran, inter alia, appealed the initial 60 percent evaluation assigned. Consideration must therefore be given regarding whether the case warrants the assignment of separate ratings for this service-connected orthopedic disability for separate periods of time, from June 5, 2001, to the present, based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). During the course of the appeal, an October 2012 Board decision/remand, inter alia, denied the claim for a rating increase for cervical disc disease with radicular symptoms above 60 percent prior to September 23, 2002. In view of pertinent changes to the applicable rating criteria for evaluating intervertebral disc syndrome (IVDS) that were promulgated on September 23, 2002, that part of the claim for an initial evaluation above 60 percent for cervical disc disease with radicular symptoms from September 23, 2002, was remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary and procedural development, including consideration in the first instance of the revised rating criteria applicable to this orthopedic disability. Following the aforementioned development, which included a VA examination conducted on December 13, 2012, a February 2013 RO/AMC rating decision determined that the Veteran would receive a higher total disability rating if his service-connected cervical disc disease with radicular symptoms, which had heretofore been rated as a single disabling entity under the older, pre-September 23, 2002 version of Diagnostic Code 5293, was divided into its individual disabling components, with each component separately rated per application of the revised rating criteria for IVDS that went into effect September 23, 2002. Thusly, he was assigned a 20 percent for cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) from December 13, 2012, under Diagnostic Code 5243; a separate 40 percent initial evaluation for radiculopathy of the right (major) upper extremity from December 13, 2012; and a separate 30 percent initial evaluation for radiculopathy of the left (minor) upper extremity from December 13, 2012, which produced a combined evaluation of 70 percent under 38 C.F.R. § 4.25 (2012). Based on this favorable determination, which yields a higher combined compensation award than the 60 percent rating previously in effect, the Board finds that no prejudice to the Veteran's increased rating claim has resulted as the net effect of the RO/AMC's rating decision does not result in an actual reduction of his compensation award. Therefore, the February 2013 RO/AMC rating decision does not violate 38 C.F.R. § 3.344 (2012), which governs stabilization of disability evaluations. The case was thereafter returned to the Board in April 2013, and the Veteran now continues his appeal. In view of the foregoing discussion, the issues now properly before the Board for appellate consideration are entitlement to an initial evaluation in excess of 60 percent for cervical disc disease with radicular symptoms for the period from September 23, 2002 to December 12, 2012; entitlement to an evaluation in excess of 20 percent for cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) from December 13, 2012; entitlement to an initial evaluation in excess of 40 percent for radiculopathy of the right (major) upper extremity from December 13, 2012; and entitlement to an initial evaluation in excess of 30 percent for radiculopathy of the left (minor) upper extremity from December 13, 2012. FINDINGS OF FACT 1. From September 23, 2002 to December 12, 2012, cervical disc disease with radicular symptoms is manifested by degenerative cervical spine and disc changes and cervical pain and persistent neuropathy affecting both upper extremities with little intermittent relief, consistent with pronounced IVDS. 2. From December 13, 2012, cervical spondylosis with degenerative disc disease and spinal stenosis (independent from its associated radicular symptoms) is manifested by degenerative cervical spine and disc changes with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees (limited by pain following repetitive motion testing), and a combined range of cervical spine motion of no greater than 170 degrees (limited by pain following repetitive motion testing). 3. From December 13, 2012, radiculopathy of the right (major) upper extremity is manifested by constant radicular pain involving the C5/C6 nerve roots and distribution with intermittent episodes of shooting pains down the affected limb, but without clinically confirmed episodes of incapacitating episodes in the prior 12-month period, which produces impairment objectively assessed as analogous to moderate incomplete paralysis of the upper 5th and 6th cervical radicular group. 4. From December 13, 2012, radiculopathy of the left (minor) upper extremity is manifested by constant radicular pain involving the C5/C6 nerve roots and distribution with intermittent episodes of shooting pains down the affected limb, but without clinically confirmed episodes of incapacitating episodes in the prior 12-month period, which produces impairment objectively assessed as analogous to moderate incomplete paralysis of the upper 5th and 6th cervical radicular group. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 60 percent for cervical disc disease with radicular symptoms for the period from September 23, 2002 to December 12, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). 2. The criteria for an evaluation in excess of 20 percent for cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) from December 13, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for an initial evaluation in excess of 40 percent for radiculopathy of the right (major) upper extremity from December 13, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2012). 4. The criteria for an initial evaluation in excess of 30 percent for radiculopathy of the left (minor) upper extremity from December 13, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist. In accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The current issues on appeal all stem directly from a claim for an initial evaluation above 60 percent for cervical disc disease with radicular symptoms, which is itself a downstream issue from a September 2007 rating decision, which initially established service connection for this disability and assigned the initial rating being contested and its effective date. The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Thusly, to the extent that there is any defect in, or non-compliance with the statutorily prescribed VCAA notice requirements with respect to the claim for higher initial evaluations for the disabilities now at issue, these deficits are deemed to be non-prejudicial to these claims. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Board observes that the Veteran's private and VA medical treatment and examination records pertinent to his cervical spine disability and associated radicular symptoms that are relevant to the period from September 2002 to March 2013 have been physically obtained and associated with his hardcopy claims file, or are otherwise viewable on the Virtual VA electronic database. An online review of the associated evidence by the Board indicates that the Virtual VA database appears complete and current for all of the Veteran's relevant VA medical records. Furthermore, the Veteran was provided with VA medical examinations in February 2006, September 2008, and December 2012 to assess the severity of his orthopedic and neurological disorders of his cervical spine. These examinations were conducted by clinicians who had the opportunity to review the Veteran's pertinent medical history as contained in his claims file and the objective findings they obtained, as they relate to the severity of the cervical disability and associated bilateral upper extremity radiculopathy at issue, are predicated on and presented in the context of this history. The Board thus finds no significant defects in the VA examination reports of record that would render them inadequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes that the evidentiary development undertaken by the RO/AMC is in substantial compliance with the Board's instructions in its prior remand of October 2012. Therefore no further remand for additional corrective development with respect to the issues on appeal is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his claim decided herein, and thus no additional assistance or notification is required in this regard. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Increased ratings - generally. 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 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). When rating musculoskeletal disabilities such as the cervical spine disorder at issue, functional loss due to pain must be considered. A thorough evaluation of a musculoskeletal or orthopedic disability for rating purposes requires consideration of any functional loss due to pain, incoordination, weakness, or fatigability. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). As relevant to the cervical disability on appeal, a thorough evaluation for rating purposes also requires consideration of any functional loss due, inter alia, to defective innervations associated with neurological impairment. 38 C.F.R. § 4.40 (2012). A separate evaluation on this basis may therefore be assigned, based on any such neurological impairment demonstrated by the relevant clinical evidence to be attributed to the underlying service-connected orthopedic disability. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The relevant temporal focus is from September 23, 2002, based on the Board's prior staged adjudication of the claim in its October 2012 appellate decision, which denied a rating in excess of 60 percent for cervical disc disease with radicular symptoms prior to September 23, 2002. (a.) Entitlement to an initial evaluation in excess of 60 percent for cervical disc disease with radicular symptoms for the period from September 23, 2002 to December 12, 2012. The initial award of service connection for cervical disc disease with radicular symptoms was made effective June 5, 2001. At the time, the existing applicable Diagnostic Code for rating IVDS was contained in 38 C.F.R. § 4.71a, Diagnostic Code 5293, which provided for the assignment of a maximum schedular rating of 60 percent on the basis of pronounced IVDS, with persistent symptoms compatible with neuropathy with characteristic pain and demonstrable muscle spasm, or other neurological findings appropriate to site of diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). The only rating codes extent at the time that provided for a higher evaluation was Diagnostic Code 5285, which assigned a 100 percent evaluation based on residuals of vertebral fracture with cord involvement rendering the victim bedridden, or Diagnostic Code 5286, which assigned a 100 percent evaluation based on unfavorable ankylosis with marked deformity. 38 C.F.R. § 4.71a (2002). Although the rating code was revised during the pendency of the claim and Diagnostic Code 5293 was abolished from 38 C.F.R. § 4.71a on September 23, 2002, the caselaw and controlling precedent opinion permits rating the Veteran under the older schedule and applying it forward if it confers the greater benefit on the claimant. See DeSousa v. Gober, 10 Vet. App. 461 (1997); VAOPGCPREC 3-2000. In the present case, private and VA medical treatment and examination reports relating to the state of the Veteran's cervical disc disease with radicular symptoms for the period prior to December 13, 2012, shows that he experienced constant neck pain and discomfort due to mild spinal cord impingement due to stenosis of the cervical canal and bulging discs demonstrated on MRI, with presentations of radicular pain affecting both his upper extremities. These presented a constellation of symptomatology that more closely approximated a 60 percent evaluation under Diagnostic Code 5293 for cervical pain and persistent neuropathy affecting both upper extremities with little intermittent relief, consistent with pronounced IVDS. As the records do not objectively demonstrate the presence of fracture residuals affecting any of his cervical vertebrae, or complete ankylosis of the cervical spine at an unfavorable angle with marked deformity, he does not meet the criteria for a rating above 60 percent under Diagnostic Codes 5285 and 5286. Post-September 23, 2006, the criteria for rating all spine disabilities are set forth in a General Rating Formula for Diseases and Injuries of the Spine provide that these disabilities are to be evaluated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The pertinent part of the General Formula for rating disability of the cervical spine is as follows: 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 Unfavorable ankylosis of the entire spine, assign a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine, assign a 50 percent rating. Unfavorable ankylosis of the entire cervical spine, assign a 40 percent rating. Forward flexion of cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine, assign a 30 percent rating. 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, assign a 20 percent rating. Note (1): Evaluate any associated objective neurologic abnormalities. . . 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 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. . . 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. Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, assignment of a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, assignment of a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, assignment of a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, assignment of a 10 percent evaluation is warranted. Note (1): For purposes of evaluations under diagnostic code 5243 [intervertebral disc syndrome], 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Post-September 23, 2002, the rating schedule provided for no rating above 60 percent except for unfavorable ankylosis of the entire spine, in which case a 100 percent rating would be assigned. As this specific clinical finding has not been objectively demonstrated, there is no basis to allow an evaluation above 60 percent on application of the revised rating schedule. The VA and private medical records, including the reports of the VA examinations of February 2006, September 2008, and March 2013, as they pertain to limitation of the Veteran's cervical spine range of motion due to cervical disc disease, demonstrates that he has forward flexion of his cervical spine greater than 15 degrees but not greater than 30 degrees (limited by pain following repetitive motion testing), and a combined range of cervical spine motion of no greater than 170 degrees (limited by pain following repetitive motion testing). This would produce no more than a 20 percent evaluation on application of the revised, post-September 23, 2002 rating criteria under Diagnostic Code 5243. Although the Veteran presented a subjective account of experiencing flare-ups of cervical spine pain that were so incapacitating as to render him bedridden during the period prior to December 13, 2012, the clinical evidence relating to this period does not objectively demonstrate that his cervical spine disability was actually manifested by incapacitating episodes as contemplated by the criteria of the revised Diagnostic Code 5243, with documentation that the Veteran was prescribed bed rest by a physician and was treated for incapacitating episodes by a physician. Therefore, there is no basis in which to rate the Veteran's cervical disc disease with radicular symptoms using the criteria for incapacitating episodes. The pertinent clinical evidence notes the presence of radicular symptoms affecting both of the Veteran's upper extremities due to the cervical disc disease and stenosis of the cervical canal imposing mild impingement on the C5 and C6 radicular nerve roots and distribution. This neurological component of his cervical spine disability is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8510, which provides for the assignment of disability rating on the basis of complete or incomplete paralysis of the upper radicular group of nerves (5th and 6th cervical) affecting each upper extremity. An affected major (or dominant) upper extremity is rated higher than its minor mate. In this case, the clinical evidence establishes that the Veteran is right-handed. Diagnostic Code 8510 assigns a 70 percent evaluation for complete paralysis of the major upper extremity and a 60 percent evaluation for complete paralysis of the minor upper extremity, with all shoulder and elbow movement lost or severely affected, but hand and wrist movements not affects. Otherwise, a 50 percent evaluation is assigned for severe incomplete paralysis of the major upper extremity and a 40 percent evaluation is assigned for severe incomplete paralysis of the minor upper extremity. A 50 percent evaluation is assigned for severe incomplete paralysis of the major upper extremity and a 40 percent evaluation is assigned for severe incomplete paralysis of the minor upper extremity. A 40 percent evaluation is assigned for moderate incomplete paralysis of the major upper extremity and a 30 percent evaluation is assigned for moderate incomplete paralysis of the minor upper extremity. A 20 percent evaluation is assigned for mild incomplete paralysis of the major upper extremity and an identical 20 percent evaluation is assigned for mild incomplete paralysis of the minor upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2012). The bilateral neurological impairment of the Veteran's upper extremities associated with the impingement of his C5 and C6 radicular nerve roots and distribution by his cervical disc disease were objectively demonstrated on VA examination in February 2006 and September 2008 to be manifested by no more than some decreased sensation to light touch of each hand. As such, assignment of a separate evaluation of no greater than 20 percent to each upper extremity for mild incomplete paralysis would be warranted prior to December 13, 2012. Therefore, if the cervical disc disease with radicular symptoms were to be separated into its individual disabling components and each component individually rated, the 20 percent evaluation for the cervical spine disability based on limitation of motion combined with the 20 percent evaluations assigned to each upper extremity based on mild incomplete paralysis of the 5th and 6th radicular group of nerves would produce no greater than a 60 percent combined rating. See 38 C.F.R. § 4.25 (2012). Therefore, in view of the foregoing discussion, application of the criteria from either the old or the revised rating schedule would not result in the assignment of an evaluation higher than 60 percent for the Veteran's service-connected cervical disc disease with radicular symptoms prior to December 13, 2012. His claim in this regard must therefore be denied. Because the evidence in this case is not approximately balanced with respect to the merits of this aspect of his claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (b.) Entitlement to an evaluation in excess of 20 percent for cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) from December 13, 2012. [The pertinent rating criteria for evaluating cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) have been presented and discussed in the analysis of the preceding issue.] The clinical evidence for the period commencing December 13, 2012, includes a VA medical examination conducted on this date and subsequent VA outpatient records current up to March 2013. These records objectively and collectively demonstrate that the Veteran's service-connected cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) is manifested by forward flexion of his cervical spine greater than 15 degrees but not greater than 30 degrees (limited by pain following repetitive motion testing), and a combined range of cervical spine motion of no greater than 170 degrees (limited by pain following repetitive motion testing). This would produce no more than a 20 percent evaluation on application of the revised, post-September 23, 2002 rating criteria under Diagnostic Code 5243. The December 2012 VA examination report indicates that the occupational impact of the Veteran's service-connected cervical spine disability and upper extremity radiculopathy imposes limits on his capacity to perform prolonged sitting, standing, and walking, but that these limitations were also due in significant part to contributory impairment attributable to his non-service-connected lumbosacral spine disability. The examination report and lay witness statements indicate, and the Veteran himself has stated in the record, that he is currently employed on a full-time basis in an office work environment, and that he lost only 5 days of work over the previous six months due to his cervical spine disability. For a rating higher than 20 percent, the clinical evidence must demonstrate forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. As the pertinent clinical evidence does not establish such limitation of motion, even limitation due to pain following repetitive motion testing, the claim for a rating increase above 20 percent must be denied. Because the evidence in this case is not approximately balanced with respect to the merits of this aspect of his claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (c.) Entitlement to an initial evaluation in excess of 40 percent for radiculopathy of the right (major) upper extremity and an initial evaluation in excess of 30 percent for radiculopathy of the left (minor) upper extremity from December 13, 2012. [The pertinent rating criteria for evaluating radiculopathy of the upper extremities associated with complete or incomplete paralysis of the upper radicular nerve group associated with the 5th and 6th cervical distribution have been presented and discussed in the analysis of the preceding issue.] The report of the December 13, 2012 VA medical examination (and the subsequent pertinent VA medical records dated thereafter) objectively demonstrate that following objective neurological evaluation of the Veteran's cervical spine and upper extremities and thorough review of his relevant medical history, the examining clinician determined that the Veteran did not have any actual incapacitating episodes of IVDS at any time during the prior 12-month period, notwithstanding the Veteran's claimed, but ultimately objectively unsubstantiated account of experiencing flare-ups of radicular pain twice per month that rendered him housebound with limited movement for approximately one week with each episode. In this regard, the credibility of the Veteran's account is called into question given that it is entirely contradicted by his other statements presented during the same VA examination in December 2012, in which he related that he worked on a full-time basis employed at an office performing sedentary office-related work and that he lost only 5 days of work over the previous six months due to his cervical spine disability. Objective assessment produced a finding of radiculopathy of each upper extremity that is manifested by constant radicular pain involving the C5/C6 nerve roots and distribution with intermittent episodes of shooting pains down the affected limb, but without clinically confirmed episodes of incapacitating episodes in the prior 12-month period, which produces impairment objectively assessed as analogous to moderate incomplete paralysis of the upper 5th and 6th cervical radicular group. Under Diagnostic Code 8510, moderate incomplete paralysis of the right (major) upper extremity warrants the assignment of a 40 percent evaluation. Moderate incomplete paralysis of the left (minor) upper extremity warrants the assignment of a 30 percent evaluation. In the absence of clinical evidence demonstrating severe incomplete paralysis of either upper extremity due to cervical disc disease, assignment of an increased evaluation above the aforementioned ratings is not warranted. The claim in this regard is therefore denied. Because the evidence in this case is not approximately balanced with respect to the merits of this aspect of his claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (d.) Extraschedular consideration, and consideration for a total disability rating for individual unemployability due to service-connected disabilities (TDIU). The records reflect that the Veteran is presently a full-time employee at a shipping receiving office, where he is employed in a sedentary capacity performing office-related work. A recent statement of his supervisor that was received by VA in 2013 indicates that the Veteran was not a salaried employee but an hourly worker who did not receive sick leave benefits, so he could not draw pay if he was absent from work due to illness. The supervisor indicated that the Veteran received a measure of accommodation for his physical disabilities at work. However, the Veteran's VA and private medical records show that he has a chronic non-service-connected lumbosacral spine disability with lumbar disc disease and associated radiculopathy and IVDS, in addition to his service-connected cervical spine disability with bilateral radiculopathy of his upper extremities. Written statements and those of his witnesses, including his spouse and brother, indicate that he was disabled not only by his service-connected cervical spine disability and bilateral radiculopathy of his upper extremities, but also, to a significant degree, by his non-service-connected lumbosacral spine disorder, which reportedly produced erectile dysfunction and episodes of urinary and fecal incontinence, which adversely impacted his capacity for work. The Veteran's spouse also indicated that he was unable to operate a motor vehicle because of these disabilities. To the extent that a claim for a total rating due to individual unemployability (TDIU) has been raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board notes that the clinical evidence does not objectively demonstrate or otherwise indicate that he is unable to secure and follow a substantially gainful occupation solely by reason of his service-connected cervical spine disability and upper extremity radiculopathy. The report of the Veteran's VA medical examination in December 2012 indicates that the occupational impact of the Veteran's service-connected cervical spine disability and upper extremity radiculopathy imposes limits on his capacity to perform prolonged sitting, standing, and walking, but that these limitations were also due in significant part to contributory impairment attributable to his non-service-connected lumbosacral spine disability. The clinical findings presented at the December 2012 examination do not demonstrate that the service-connected cervical spine disability and upper extremity radiculopathy, by themselves as his only service-connected disabilities, actually render him unable to secure and follow a substantially gainful occupation. As such, there is no basis to award a TDIU. Notwithstanding the above discussion, a rating in excess of the assigned schedular evaluations for the Veteran's service-connected cervical spine disability and upper extremity radiculopathy may be granted when it is demonstrated that these particular disabilities presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. See Shipwash v. Brown, 8 Vet. App. 218, 277 (1995). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that there is no evidence that the Veteran's service-connected cervical spine disability and upper extremity radiculopathy have presented such an unusual or exceptional disability picture at any time during the pendency of this claim, so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). In this case, the evidence of record does not indicate the Veteran is frequently hospitalized for his service-connected cervical spine disability and upper extremity radiculopathy. Although the clinical evidence indicates that the Veteran is limited in performing occupations that require him to engage in physical activities that involve prolonged sitting, standing, or walking (including operating an automobile), there is no clinical evidence that deems him to be clinically precluded from performing sedentary work and he is, in fact, demonstrably capable of doing such work on a full-time basis and is fully employed and engaged in sedentary office-type work. The criteria of the applicable rating schedule as contained in 38 C.F.R. § 4.71a, Diagnostic Code 5243 (for the cervical spine disability) and 38 C.F.R. § 4.124a, Diagnostic Code 8510 (for the bilateral radiculopathy of his upper extremities) adequately contemplate his present level of impairment. Furthermore, the impairment of the Veteran's occupational capacity is additionally impacted by his non-service-connected lumbosacral spine disability. As such, the Board cannot concede that the Veteran's service-connected cervical spine disability and upper extremity radiculopathy, standing by themselves, cause marked interference with his employment. Furthermore, the clinical evidence fails to show that the disability picture created by the service-connected cervical spine disability and upper extremity radiculopathy is exceptional or unusual. Having reviewed the record with these mandates in mind, the Board finds that the schedular ratings presently assigned adequately reflect the state of his service-connected cervical spine disability and bilateral upper extremity radiculopathy for the periods to which they are applied, and that there is no evidentiary basis for referral of the case for extraschedular consideration. ORDER An initial evaluation in excess of 60 percent for cervical disc disease with radicular symptoms for the period from September 23, 2002 to December 12, 2012, is denied. An evaluation in excess of 20 percent for cervical spondylosis with degenerative disc disease and spinal stenosis (previously rated as cervical disc disease with radicular symptoms) from December 13, 2012, is denied. An initial evaluation in excess of 40 percent for radiculopathy of the right (major) upper extremity from December 13, 2012, is denied. An initial evaluation in excess of 30 percent for radiculopathy of the left (minor) upper extremity from December 13, 2012, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs