Citation Nr: 1324475 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-20 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent prior to March 18, 2011, and in excess of 30 percent thereafter, for degenerative joint disease of the cervical spine (neck disability). 2. Entitlement to a disability rating in excess of 10 percent for residuals of a fracture of the right distal radius (right wrist disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1972, and from April 1983 to February 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied increased ratings for the Veteran's neck and right wrist disabilities. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in August 2010. A transcript of the hearing is associated with the claims file. The Board remanded the Veteran's case in December 2010 for further development. The requested action was taken and the case has since been returned to the Board for adjudication. In a March 2012 rating decision, the Veteran's disability rating for his neck disability was increased to 30 percent disabling, effective March 18, 2011. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the ratings assigned for his neck disability and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, the Board notes that in his claim from which the appeal originated, the Veteran contended that his service-connected disabilities render him unemployable, thus raising a claim for a total disability evaluation based on individual unemployability (TDIU). However, the Board notes the TDIU claim was denied in the above referenced June 2006 rating decision. The claims file does not indicate the Veteran has since expressed a desire to appeal this claim as required pursuant to 38 C.F.R. § 20.1103 (2012). Additionally, in a statement received by VA in October 2007, the Veteran clearly indicated his wish to withdraw the TDIU claim as he specifically referenced not meeting the rating threshold for the claim. The Board has also considered the evidence submitted since the June 2006 rating decision, which does not include any specific claim of unemployability. Therefore, the TDIU issue is not on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated). In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. Prior to March 18, 2011, the Veteran's neck disability has not been manifested by forward flexion less than 15 degrees, nor is he shown to have incapacitating episodes in the form of doctor prescribed bed rest due to his neck symptoms. 2. Beginning March 18, 2011, the Veteran's neck disability has not been manifested by ankylosis of the cervical spine, nor is he shown to have incapacitating episodes in the form of doctor prescribed bed rest due to his neck symptoms. 3. The Veteran has mild cervical radiculopathy of the bilateral upper extremities due to his service-connected neck disability. 4. The Veteran is right-hand dominant. 5. The Veteran's right wrist disability is manifested by subjective complaints of pain, numbness at night, swelling, fatigue, weakness, stiffness, including limited gripping and lifting, and objective evidence of tenderness, decreased motion, but without any evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent, prior to March 18, 2011, and in excess of 30 percent thereafter, for the Veteran's neck disability have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a separate 20 percent rating for cervical radiculopathy of the right upper extremity are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14; 4.124a, Diagnostic Code 8512 (2012). 3. The criteria for a separate 20 percent rating for cervical radiculopathy of the left upper extremity are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14; 4.124a, Diagnostic Code 8512 (2012). 4. The criteria for a rating greater than 10 percent for residuals of a right wrist fracture have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code 5215, 4.124a, Diagnostic Code 8516 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in November 2005 and March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating, including the specific disability rating percentage the Veteran feels is applicable and warranted. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has not indicated private treatment for his neck and wrist disabilities. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examination most recently in March 2011. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. The examination report also discussed the impact of the disabilities on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the March 2011 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the March 2011 VA examination and report, and the subsequent readjudication of the issues, the Board finds that there has been substantial compliance with its December 2010 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the 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 entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The basis of disability evaluation 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background and Analysis Neck The Veteran maintains that his neck disability warrants a disability rating in excess of 20 percent prior to March 18, 2011, and in excess of 30 percent thereafter. By way of background, service connection for a neck disability was originally awarded in a May 1988 rating decision. A 10 percent rating was assigned, effective February 1988. In a December 1991 rating decision, the RO increased the disability rating to 20 percent, effective June 1991. The Veteran filed his current request for increase in November 2005. The Veteran's lumbar spine disability has been evaluated under the general rating formula for disease and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 The general rating formula 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 ............................100 Unfavorable ankylosis of the entire thoracolumbar spine......50 Unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine...............................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine..........................................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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.................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height..................................................10 Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Intervertebral disc syndrome (IVDS) is 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 evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under 38 C.F.R. § 4.124a , Diagnostic Code 8510, mild incomplete paralysis warrants a 20 percent evaluation for both the major and minor group. Moderate incomplete paralysis warrants a 40 percent evaluation for the major group, and a 30 percent evaluation is warranted for the minor group. When there is incomplete paralysis, a 50 percent rating is in order for the major upper radicular group, and a 40 percent rating is in order for the minor group. A maximum schedular rating of 70 percent is awarded for complete paralysis of the major upper radicular group, and a 60 percent rating is awarded for complete paralysis of the minor group. With complete paralysis, all shoulder and elbow movements are lost or severely affected, and hand and wrist movements are not affected. 38 C.F.R. § 4.124a , Diagnostic Code 8510 (2012). Following his request for an increase, the Veteran was afforded a VA examination in January 2006, during which he complained of increasing neck pain over the past few years. He advised that he is treated with cortisone injections and pain medication. He endorsed radiating pain into the right shoulder with associated spasms. The neck pain increases by sitting, cold weather, repeated lifting, and performing other tasks associated with his job as a machinist. He is able to lift 20 pounds without incident. He endorsed increased pain and decreased range of motion following repeated use and when he looks up/down or left/right. He endorsed two to three flare-ups a week, and they last about two days. He complained of pain and numbness across the chest (in front) to the top of the shoulder area on the right. He denied any radiation going down to his arms or hands. He denied the use of a neck brace. The Veteran indicated that his neck disability impacted his ability to work because as a machinist he has to stand for 8 hours at a time, following which the pain becomes "unbearable." He denied any incapacitating episodes in the past 12 months. Physical examination of the cervical spine showed no tenderness or spasm. Active range of motion revealed forward flexion to 35 degrees, extension to 38 degrees, left lateral flexion to 22 degrees, right lateral flexion to 23 degrees, and bilateral rotation to 30 degrees in each direction. All range of motion testing resulted in pain at the back of the neck. Following repeated testing, the Veteran did not have increased pain and had the same ranges of motion listed above. There is no fatigue, impaired endurance, or weakened movement noted. Biceps and triceps jerks are equal at 1+, and sensory testing was intact and without any focal weakness. The examiner diagnosed cervical spine degenerative joint disease with impingement syndrome of the right shoulder with limited motion. In private treatment records dated from 2005 to 2007, the Veteran was noted to have C4 radiculopathy with MRI evidence of moderate to severe neural foraminal narrowing at C3-4 with effacement of the left C4 nerve root. In February 2010, the Veteran underwent another VA cervical spine examination. At that time, he described isolated neck pain with radiation between his shoulder blades. He endorsed being in constant pain, with limitation of motion and stiffness, and described his pain as being as if "someone is reaching up into my skull and pulling my brain out." The Veteran denied any tingling, numbness, or radiation of pain in either upper extremity and has never had surgery on his neck. He described flare-ups occurring every other day or so, but he is in constant pain. The Veteran indicated that he lost 60 days of work in the last year due to his pain (no specification as to which pain source of his pain he is talking about). He denied any incapacitating episodes due to his neck disability, and stated that it is better for him to get up and around. Physical examination revealed significant limitation of motion in his cervical spine. Flexion was from 0 to 20 degrees and extension was to 20 degrees with only mild pain at the end point. Right and left lateral flexion was to 10 degrees each, and right rotation is to 10 degrees and left rotation to 15 degrees, with slight pain at the end point of each. The examiner indicated the Veteran had a positive cervical compression test for localized back pain at the base of the occiput. He has a very wide neck and a spasm of the paraspinal cervical muscles were palpable. The Veteran endorsed tenderness in the paraspinal cervical muscles. He noted the Veteran had good grip strength bilaterally and sensation is intact in both hands at all three autonomous zones. Regarding the DeLuca criteria, the examiner indicated that there was no change in active or passive range of motion during repeated testing, nor was there additional loss of range of motion in the cervical spine due to painful motion, weakness, impaired endurance, incoordination, or instability. The examiner reviewed a 2009 x-ray, and confirmed the diagnosis of degenerative joint disease of the cervical spine with mild degenerative changes in the facet joints C3-4 and C5-6, and C6-7. During the Veteran's August 2010 hearing, he testified that he is experiencing problems lifting things as it feels as if someone is putting a knife right in between his shoulder blades. He stated that this pain happens 24 hours a day and it feels like someone is pulling his brain out through his back. He denied having doctor prescribed bed rest. He stated that it impacts his daily living inasmuch as it takes him longer to complete household/yard chores. He stated that his legs and low back cause him pain and feel like they want to quit moving. He stated that his problems lifting are exacerbated at work, but he has not been put on a weight restriction. The Veteran reported that his treating physician told him not to exercise, and he advised that he has taken 60 days off of work in the past year due to his neck, wrist, and shoulder disabilities. When specifically asked whether he experiences pain in his arms, the Veteran replied that he does not have pain in his arms, but pain that radiates down his back. He further denied any numbness in the arms or hands, but endorsed numbness and tingling in the hands at night or if he puts his hands behind his back. He testified that he experiences pain in his neck with any movement, and once or twice a week he cannot move his head at all. This usually occurs secondary to heavy lifting at work. During the Veteran's March 2011 VA examination, he reported being unable to lift more than 10 pounds because of his shoulder, neck, and wrist. He is supposed to sit for 30 minutes, then stand for 10 minutes. He again indicated that he has missed 60 days in the past year due to rheumatoid arthritis and neck, wrist, shoulder, and low back pain. He opined that 50 of these 60 days could be attributed to his neck and right upper extremity disabilities. He indicated that he has trouble driving because he cannot turn his neck. The Veteran additionally related constant neck pain and made similar pain analogies as during his hearing. He has reported a history of multiple injections in his neck, but is too afraid to undergo neck surgery. The Veteran indicated that his neck pain travels down between his shoulders and is different than his rheumatoid arthritis pain. He endorsed left upper anterior and posterior chest numbness since the in-service accident, and it feels dead to touch. The Veteran indicated that he gets intermittent numbness in both hands and sometimes awakens with numb fingers. Current pain is 7 out of 10, even with high doses of morphine. He stated that this pain is unbearable every morning until he takes his medications and showers. He also endorsed that his neck feels tired, stiff, and tight. He denied any incapacitating episodes of doctor prescribed bed rest in the past year for his neck disability, but indicated that from October to December (presumably in 2010), he was put off work for 7 weeks to rest for arthritis pain. Physical examination of the spine showed a decrease in the usual cervical lordosis, but with no obvious scoliosis. There is muscle spasm palpable throughout the bilateral cervical paraspinals. There is muscle spasm and guarding severe enough to result in abnormal spinal contour. There is significant tenderness to palpation over the bilateral cervical paraspinals and suboccipital region. Spurlings appears negative but unreliable bilaterally for radicular pain due to the Veteran's severely limited ROM. Prone straight leg raise negative bilaterally for radicular pain. Muscle tone essentially normal bilateral upper and lower extremities. Range of motion revealed forward flexion to 15 degrees, with pain at 10 degrees; extension to 15 degrees, with pain to 10 degrees; left lateral flexion to10 degrees, with pain at 5 degrees; right lateral flexion to 15 degrees, with pain at 10 degrees; left lateral rotation to 15 degrees, with pain at 5 degrees; and right lateral rotation to 20 degrees, with pain at 10 degrees. Objective evidence of pain included consistently limited range of motion throughout history and examination, chronic thickening and tightness of neck muscles due to chronic guarding and aplenty, and consistent expressions with cervical range of motion. Strength testing resulted in 5/5 in the bilateral shoulder abductors, elbow flexors, elbow extensors, wrist extensors, first dorsal interossei, abductor pollicis brevis (APB), hip flexors, knee extensors, ankle dorsiflexors, extensor hallucis longus, and hamstrings. The exception is the left biceps 4+ with some give way weakness due to pain, right APB 5-. The examiner opined that there was no significant change in active range of motion following repeat testing again resistance and range of motion appear valid and sufficiently limited that his level of impairment is clear. As such, no additional loss of range of motion is recommended for the cervical due to painful motion, weakness, impaired endurance, incoordination, or instability. Following review of the claims file, including x-rays and MRI of the cervical spine, the examiner diagnosed the Veteran as having cervical degenerative disc disease and spondylosis with painful, limited range of motion. Sensory abnormalities include left C2-4 distribution. The examiner opined that these sensory abnormalities are as likely as not related to his moderate to severe left neural foraminal narrowing at C2-5 due to degenerative changes. He would classify these as cervical radiculopathies. The T2-4 sensory abnormalities are as likely as not related to spinal cord thinning in this area, but it is of uncertain etiology. He stated that these thoracic sensory problems are likely chronic in nature. The positive Hoffman's testing bilaterally is of uncertain clinical significance because the cervical imaging and motor findings do not show a clear cervical myelopathy. Brisk patellar reflexes are likely related to the thoracic spinal cord thinning. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 20 percent prior to March 18, 2011, and in excess of 30 percent thereafter. The Board finds, however, that the Veteran is entitled to a separate 20 percent rating for mild, incomplete paralysis of the upper radicular group for cervical radiculopathy. Prior to March 18, 2011, the Veteran's cervical spine disability was shown not to be limited to forward flexion to 15 degrees or less, or to be favorably ankylosed in order to warrant a 30 percent disability rating. Prior to March 18, 2011, forward flexion of the cervical spine was, at its worst, to 20 degrees. Beginning March 18, 2011, the Veteran's cervical spine disability was first shown to be manifested by forward flexion limited to 10 degrees with pain. The evidence of record, however, shows that the Veteran's cervical spine is not unfavorably ankylosed to warrant the higher, 40 percent rating. Indeed, the Veteran had painful motion, but there was some motion, albeit limited. His symptoms are not analogous to those associated with unfavorable ankylosis of the entire cervical spine. As such, a rating in excess of 30 percent, beginning March 18, 2011, is not warranted. At no time during the period on appeal has the Veteran endorsed doctor prescribed bed rest for his cervical spine disability. The evidence of record shows that the Veteran reported being told to take 7 weeks of work off due to his disabilities, but it was not shown to be related solely to his cervical spine disability. Moreover, the Veteran told VA examiners that bed rest is not advisable for his neck disability because he needs to move around to help relieve the symptoms. As there is no evidence showing that bed rest has been prescribed by a physician during either periods on appeal, a higher rating pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. The Board finds, however, that the evidence of record shows consistent and competent complaints of cervical radiculopathy in the bilateral upper extremities. Additionally, the Veteran has consistently reported to treating professionals that the radiation of pain goes into his upper back, shoulders, and hands. Although the March 2011 VA examiner could not determine whether the Veteran's symptoms were due to his cervical spine disability or nonservice-connected rheumatoid arthritis, he indicated that there is overlapping symptomatology between the two that makes it difficult to separate them. As such, all reasonable doubt is resolved in the Veteran's favor and a 20 percent rating for each upper extremity is awarded for cervical radiculopathy, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8510. See generally Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question attributed to the service-connected disability). The Board finds that although the Veteran has described his symptoms as severe in nature, a review of the clinical record shows that the radiculopathy symptoms are no more than mild in nature. There is no indication of any symptoms beyond sensory deficiencies and pain. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA, his hearing testimony, and the arguments submitted by his representative. The Veteran, as a layperson, is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording both the Veteran full credibility, nothing in the lay evidence provided shows the cervical spine disability has met the criteria for higher evaluations during the timeframes on appeal. At no point prior to March 18, 2011, have the criteria for a rating in excess of 20 percent for the Veteran's service-connected neck disability, and at no point since then have the criteria for a rating in excess of 30 percent been met. The Board has considered whether additional compensation is warranted under the DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995) factors. However, functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. In this case, either the VA examiners specifically found no additional limitation of function due to pain, weakness, fatigability or incoordination even after repetitive motion, or when they did, they assessed and listed the decreased ranges of motion following repetitive motion. The Board concludes that higher ratings based on those factors are not warranted. Right Wrist The Veteran contends that his right wrist disability warrants a rating in excess of 10 percent. Historically, the RO originally granted service connection for a right wrist disability in a May 1988 rating decision. An noncompensable rating was assigned, effective February 1988. In a December 1991 rating decision, the RO increased the Veteran's disability rating to 10 percent, effective June 1991. The Veteran filed his current request for increase in November 2005. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist. Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist; limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2012). Under Diagnostic Code 8516, complete paralysis of the ulnar nerve includes the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2012). For incomplete paralysis, a 10 percent rating is assigned for a mild disability, a 20 percent rating is assigned for a "moderate" disability afflicting the minor, or non-dominant, hand, and a 30 percent rating is assigned for a "severe" disability afflicting the non-dominant hand. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The words "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). The Veteran was afforded a VA examination of the joints in January 2006, at which time he reported daily pain in the right wrist. He endorsed flare-ups once every three to four months that may last one to two days with severe pain. During a flare-up, the Veteran rests his arm and takes pain medication. The right wrist disability impacts his work inasmuch as he has to perform a lot of lifting and uses machinery. Physical examination of the right wrist showed no swelling, tenderness, or deformity. Active and passive range of motion revealed dorsiflexion to 60 degrees, with painful motion from 50 to 60 degrees. Palmar flexion is to 30 degrees with painful motion from 20 to 30 degrees, and radial deviation of 16 degrees with pain and the end of motion. Ulnar deviation is to 20 degrees with pain at the end of the motion. Following repeated motion with a 5-pound weight, the Veteran had painful motion at 50 degrees on dorsiflexion. This is an additional 10-degree loss of dorsiflexion due to painful motion, but without fatigue, impaired endurance, or weakened movement. Repetitive testing with a weight revealed the same radial and ulnar deviation as above. The Veteran denied using a right wrist brace or any flare-up of right wrist pain. The examiner diagnosed the Veteran as having status-post fracture of the right wrist and distal forearm, healed with limited motion. X-ray revealed 2mm ulnar positive variance, but it was otherwise normal. In an April 2008 VA examination, the examiner indicated that the Veteran is right hand dominant. He stated that the Veteran was previously identified as left-handed, but this was in error. This examination did not address his right wrist disability. In October 2009, the Veteran was afforded another VA examination of the right wrist, during which he was noted to have right wrist locking, stiffness, and swelling. These symptoms occur on a daily basis, but the Veteran denied use of a brace or splint. He denied any surgery on his right wrist. The examiner indicated that the Veteran had a mild degree of acute distress attributable to his right wrist problems. Physical examination of the right wrist revealed flexion from 0 to 15 degrees, without significant pain; extension from 0 to 20 degrees, with some pain at the end point; radial deviation of 0 to 15 degrees, with pain at the end point; and ulnar deviation of 0 to 10 degrees with pain at the end point. There is no gross deformity of the right wrist, but he is tender to palpation over the mid-dorsum of the right wrist. There is no swelling, erythema, hyperemia, or acchymosis. Palpation to the radial and ulnar areas shows some tenderness over their respective styloids. The examiner diagnosed the Veteran as having status-post prior right distal radius fracture. During the Veteran's August 2010 hearing, he demonstrated that he has very little range of motion in his right wrist. He stated that he did not have too much pain in his wrist, but there is stiffness. He denied any radiating pain into the fingers, but he is unable to make a full fist with his right hand. The Veteran indicated that it is difficult for him to write and pick up things with his right wrist pain. The Veteran was most recently afforded a VA joints examination in March 2011, during which he reported that he is unable to lift more than 10 pounds because of his wrist. The Veteran advised that he is having trouble using his computer due to his right wrist problems. He endorsed current and constant right wrist pain, particularly on the ulnar side. There is a burning feeling dorsally and a dull pain ulnarly. The Veteran has no catching or locking of the right wrist joint because the range of motion is already limited. He endorsed some swelling, but could not determine whether the swelling is due to rheumatoid arthritis. He denied any instability. His right wrist mainly impacts his ability to write or put on his clothes (buttoning). Pain worsens with bad weather, but he does not use any braces or assistive devices. Treatment includes morphine for pain. He described flare-ups of right wrist problems 5 to 6 times per month, and they last from 2 to 3 days. The Veteran believes the flares are a combination of his fracture residuals and his arthritis pain, but he could not sort out the extent of each. Physical examination of the right wrist revealed no swelling, redness, instability, or abnormal alignment. There was tenderness present over the distal ulna, but negative Watson's testing. Range of motion testing revealed flexion from 0 to 30 degrees, with pain at 20 degrees; extension from 0 to 45 degrees, with pain at 30 degrees; radial deviation from 0 to 15 degrees, with pain at 10 degrees; and ulnar deviation from 0 to 10 degrees with pain at 0 degrees. Physical examination of the right hand revealed a normal position of the hands and fingers, and no ankylosis. There is no gap with opposition of the thumb, 2nd, 3rd, and 5th fingers to proximal palmar crease of the right hand, but there is a 1.5 cm gap with opposition of the 4th finger to the proximal palmar crease. Range of motion in the metacarpophalangeal (MCP) joints of the right hand revealed flexion from 0 to 40, with pain at the end of motion, and extension from 0 to 5 with pain at the end of motion. Proximal interphalangeal (PIP) flexion is from 0 to 90 degrees, with pain in fingers number 2, 3, and 5, and 0 to 80 degrees with pain for finger number 4. Distal interphalangeal (DIP) flexion is 0 to 25 degrees for finger number 2, 0 to 30 degrees for finger number 3, 0 degrees for finger number 4, and 0 to 20 degrees for finger number five-all with pain. DIP extension is 0 to 5 degrees with pain. Thumb palmar abduction/adduction testing is 0 to 60 degrees, thumb flexion and extension at MCP joint is 0 to 30 degrees, and thumb flexion and extension at the interphalangeal join is 0 to 90 degrees and 0 to 20, respectively-all with pain. Finger abduction/adduction is 0 to 18 degrees with pain, except there is a gap at distal finger length from PIP to DIP with adduction between fingers 3 and 4. Gap is 4 degrees for the bilateral hands. Except as noted, the examiner indicated that there was no change in active or passive range of motion during repeat testing, and no additional loss of range of motion in the right hand due to painful motion, weakness, impaired endurance, incoordination, or instability. Neurological examination of the right hand revealed strength of 4/5 in the interosseous muscles. Sensation testing is intact as to all sensations in his right hand, except the area just distal to the 4th MCP. X-ray of the right ring finger was not well defined, and the examiner was uncertain as to whether this was due to disease or projection. The examiner opined that there was no significant change in active range of motion following repeat testing again resistance and range of motion appear valid and sufficiently limited that his level of impairment is clear. As such, no additional loss of range of motion is recommended for the right wrist due to painful motion, weakness, impaired endurance, incoordination, or instability. Following review of the claims file and interview and examination of the Veteran, the examiner diagnosed the Veteran as having rheumatoid arthritis of the right wrist based upon prior x-ray documentation of distal ulnar erosive changes on x-rays. He opined that the current pain complaints and focal tenderness are at the ulnar styloid, but the tenderness associated with his in-service right wrist injury was on the radial side. The examiner opined that there are no clear residuals of the fracture of the right distal radius. Limited range of motion in the right wrist is present, but treating rheumatologists have clearly indicated that the Veteran has right wrist rheumatoid arthritis. The examiner indicated that he is unable to distinguish the current residuals of the distal ulnar fracture from his findings due to rheumatoid arthritis without resorting to speculation. In so asserting, the examiner indicated that there is too much clinical overlap of symptomatology, and medical science has no way to attribute range of motion abnormalities to one or the other disease processes. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 10 percent for residuals of his right wrist fracture. The Board recognizes that the Veteran's statements and the medical evidence show at least some impairment of right wrist and hand function. In this regard, the Veteran's right wrist disability is manifested by subjective complaints of pain, tingling, numbness, swelling, fatigue, weakness stiffness, giving way, and locking, including limited gripping and lifting, and objective evidence of tenderness, decreased motion. A review of the VA examinations of record show right wrist dorsiflexion, at its worst, to 15 degrees, and no evidence of palmar flexion limited in line with the forearm. During the Veteran's hearing, it appears that he was stating his palmar flexion was limited so as to not extend too far past the line with the forearm. Nevertheless, these symptoms are analogous to those for a 10 percent rating under Diagnostic Code 5215. As noted above, evaluation of a service-connected disability involving a joint requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. In this case, the Veteran's observed range of motion of the right wrist does not warrant a compensable rating under the criteria of Diagnostic Code 5215, as he does not have limitation of dorsiflexion of less than 15 degrees or palmar flexion limited in line with the forearm. Additionally, there is no additional limitation of motion in the right wrist following repetitive motion. Thus, the current 10 percent rating under Diagnostic Code 5215 is an attempt to compensate the Veteran for his functional loss pursuant to the requirements set forth in DeLuca. As noted, this is the highest rating available under Diagnostic Code 5215. The Board has also considered whether to assign the Veteran a separate rating for his right hand limitation of motion-specifically his limitation of motion in his right ring finger. The Board finds, however, that any limitation of motion in the right ring finger would be noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5230. There is no ability for a compensable rating unless there is ankylosis of multiple digits including the ring finger. Id., Diagnostic Code 5227. The Veteran does not have any ankylosis of the fingers in the right hand, including his right ring finger that has a gap of 1.5 cm. Additionally, no other right fingers have a gap with opposition to the palmar crease of the right hand. As such, a separate rating for limitation of motion for fingers of the right hand is not warranted. In addition, no higher or alternative rating under a different code can be applied. The Board has considered whether a rating under Diagnostic Code 5214 for ankylosis of the wrist is warranted. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Board notes that the March 2011 VA examination showed significantly decreased radial and ulnar deviation, of 10 and 0 degrees without pain, respectively. Although this represents considerably decreased motion from average, the Veteran remains able to perform some level of radial and ulnar deviation and, as discussed above, has range of palmar flexion and dorsiflexion that would be noncompensable. Given that the Veteran retains movement in all planes, albeit limited, the Veteran's right wrist joint clearly is not ankylosed and the Board concludes that a rating as analogous to ankylosis is not warranted. The Board has also considered whether the Veteran is entitled to a separate rating for neurological manifestations of his right wrist disability. The Board finds that the Veteran's neurological symptoms in the right upper extremity have been specifically attributed to his service-connected cervical spine disability and is discussed in the section above. Nevertheless, the evidence of record does not show paralysis (incomplete or complete) of the ulnar nerve to warrant a separate rating under Diagnostic Code 8516. In short, the Veteran is not entitled to a rating greater than his current 10 percent rating under Diagnostic Code 5215, nor is he entitled to a separate rating for any right hand/finger limitation of motion. As noted above, consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no basis upon which to assign a rating greater than the separate 10 percent rating currently assigned for the Veteran's service-connected residuals, fracture right wrist, as a review of the record, to include the medical evidence, fails to reveal any additional functional impairment associated with such disability to warrant consideration of alternate rating codes other than the ones discussed above. Additional Considerations Consideration has been given to assigning a staged rating (or additional staged ratings). AS noted above the cervical spine disability has been assigned staged ratings. The Bord finds that, outside of the already assigned staged ratings for the cervical spine, the disabilities have remained substantially uniform during the entire appeal period and additional staged ratings are not warranted. See Fenderson. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected neck and right wrist disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's neck and right wrist disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports painful motion, weakness, difficulty lifting, numbness, radiation of pain, and loss of range of motion. As discussed above, the current 20 and 30 percent staged ratings for his neck disability and 10 percent rating for his right wrist disability are adequate to fully compensate the Veteran for his documented symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A rating in excess of 20 percent prior to March 18, 2011, and in excess of 30 percent thereafter for cervical spine disability is denied. However, a separate, 20 percent rating for cervical radiculopathy of the right upper extremity is granted. A separate, 20 percent rating for cervical radiculopathy of the left upper extremity is granted. A rating in excess of 10 percent for residuals of a right wrist fracture is denied. ____________________________________________ E. I. VELEZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs