Citation Nr: 1325374 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-07 021A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability. 2. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability prior to June 6, 2013 and a rating in excess of 40 percent from that date. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from March 1951 to November 1957 and from January 1958 to April 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. In October 2011, November 2012, and March 2013, the Board remanded these claims to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The claims have now been returned to the Board. In a June 2013 rating decision, the AMC increased the rating for the Veteran's service-connected lumbar spine disability to 40 percent disabling, effective June 6, 2013. As the rating is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue is characterized to reflect that "staged" ratings are assigned, and that both "stages" are for consideration. In the June 2013 decision, the AMC granted service connection for radiculopathy of the left lower extremity and assigned a 10 percent disability rating, effective June 6, 2013. Although these matters are related to the current severity of the Veteran's service-connected lumbar spine disability, they are not inextricably intertwined with the matters on appeal. The Board expresses no opinion and enters no findings as to the date of onset or severity of the Veteran's newly service-connected neuropathy of the left lower extremity. As a result, the currently appealed claim for a higher rating for the service-connected lumbar spine disability may now be considered without prejudice to any future appeal as to the proper effective date or initial ratings for separately service-connected and rated neuropathy of the left lower extremity. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's cervical spine disability was not manifested during the Veteran's active duty service or for many years thereafter, is not otherwise related to such service, and is not causally related to or aggravated by the Veteran's service-connected lumbar spine disability. 2. For the appeal period prior to June 6, 2013, the Veteran's service-connected lumbar spine disability is manifested by limitation of motion; forward flexion of 30 degrees or less, favorable or unfavorable ankylosis of the spine, or physician prescribed bed rest for incapacitating episodes having a total duration of at least four weeks have not been not shown. 3. For the appeal period from June 6, 2013, the Veteran's service-connected lumbar spine disability is manifested by limitation of motion; unfavorable ankylosis of the spine or physician prescribed bed rest for incapacitating episodes having a total duration of at least six weeks have not been not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. For the appeal period prior to June 6, 2013, the criteria for a rating in excess of 20 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Code (DC's) 5235-5243 (2012). 3. For the appeal period from June 6, 2013, the criteria for a rating in excess of 40 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Code (DC's) 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). An October 2004 letter fully addressed all notice elements and was sent prior to the initial January 2005 RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. While the Veteran was not notified of what type of information and evidence was needed to establish a disability rating and effective date, he was advised of such notice in a January 2009 letter. The claims were subsequently readjudicated in a supplemental statement of the case (SSOC) issued in February 2013. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records (STRs), as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. A review of the Virtual VA paperless claims processing system shows that VA treatment records through April 2013 are of record. The AMC considered these updated VA treatment records in the June 2013 SSOC. In March 2013 remand, the Board sought VA opinions to determine whether the Veteran's neck disability was related to his service connected lumbar spine disability and to assess the severity of his service-connected lumbar spine disability. The requested opinions were provided in April and June 2013 and were in accordance with the remand request and are adequate. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); and Barr v. Nicholson, 21 Vet. App. 303 (2007). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) Under 38 C.F.R. § 3.310(b), secondary service connection may be warranted for disabilities aggravated by a service connected disability. Briefly, the Board observes that the Veteran filed his claim prior to October 10, 2006, and the revised criteria of establishing a baseline prior to aggravation is not applicable as it has retroactive effects. Allen v. Brown, 7 Vet. App. 439 (1995); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008);71 Fed. Reg. 52,744-52,747 (2006) (codified at 38 C.F.R. § 3.310 (2012)); VAOPGCPREC 7-2003. The Veteran here claims that he injured his both his neck and back in service as a result of an injury from falling off of a roof in service. Service treatment records including March 1951 and December 1953 enlistment clinical evaluations and reports of medical history, as well as November 1957 separation examination are negative for any complaints, findings, or diagnoses related to the Veteran's cervical spine. Records revealed that in July 1954, the Veteran slipped and fell off of the roof of the barracks. As a result, he had a compression fracture of L3 and L4 and he fractured the left 4th, 5th, and 6th ribs. Post service treatment records included, a June 1977 VA examination included x-rays that showed slight degenerative change on the left at the C1-2 level. An October 2003 private MRI report showed spondylosis at C5-6 and C6-7 with cord compression and flattening of the spinal cord. There was bilateral intervertebral neural foraminal stenosis at these levels. There was an asymmetric disc/osteophyte complex towards the left at C3-4 with left intervertebral neural foraminal narrowing. There was a broad-based disc/osteophyte complex at C4-5 with mild canal stenosis and flattening of the spinal cord and minimal left intervertebral neural foraminal narrowing. There was reversal of the normal lordotic curvature of the spine centered at C5-6 secondary to spondylosis. On November 2004 VA examination, the Veteran was diagnosed with degenerative cervical spondyloarthritis with degenerative disc disease. In light of the above, a current diagnosis of the cervical spine disability has been demonstrated. Initially, the Board observes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Starting first with presumptive service connection, the Board notes that, although degenerative changes have been observed, there is no evidence of arthritis within one year of service. Therefore, an award of service connection on a presumptive basis for chronic disease is precluded. 38 C.F.R. §§ 3.307, 3.309. The Board will now consider a direct theory of entitlement. In this case, there is evidence of a lumbar spine injury in service, for which service connection has already been granted. However, there is no medical evidence of treatment or a diagnosis of any cervical spine disorder in service. Further, there is no competent medical evidence linking any cervical spine disorder to active service. On October 2003 private MRI report, the Veteran reported complaints of left neck and shoulder pain for a few weeks. The Veteran was afforded a VA examination in November 2004. At that time, he reported that neck pain began in 1999 and that it was spontaneous in nature with no precipitating factors. The examiner opined that the Veteran's neck condition was less likely than not caused by the accident in which he injured his back. A VA medical opinion was rendered in October 2011. The examiner opined the Veteran's degenerative disc of cervical spine was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that although a June 1977 cervical spine x-ray reported slight degenerative changes on the left at C1-2, this was not seen in the subsequent x-ray report in 1999. According to the examiner, it was reported as normal atlantoaxial axis (C1-2). The examiner further noted since degenerative changes were progressive through the years, it would be expect to see changes at this level after 22 years. In addition, the neurological examination in 1977 was noted to be normal and the Veteran had full range of motion of the cervical spine. According to the examiner, the Veteran had no symptoms referable to degenerative joint disease of the C1/C2 level then and now. The examiner further noted that the Veteran's current complaint was due to spondylosis of the C5/6 C6/7 level that he reported to be present for several years and that worsened in 1999. The examiner further noted it was unlikely that your symptoms began 20 plus years before. Lastly, the examiner noted that the Veteran fell in 1952, in which he fractured his lumbar vertebrae L2-3. The examiner reported that the STR's were silent for neck pain and that a fracture of the lumbar vertebrae does not lead to degenerative changes of the cervical spine. Therefore, the fall was not related to the Veteran's current neck pain. The Board has considered the Veteran's reports of falling in service and injuring both his neck and back and his beliefs that that his current cervical spine disorder was related to this event, or otherwise related to service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. While the file lacks competent evidence relating a current cervical spine disorder to active service, the Board notes that service connection could still be established on a direct basis upon a showing of continuity of symptomatology. On this point, the Board finds it significant that the first post-service documentation of a cervical spine disorder dates back to October 2003, approximately 26 years since his discharge from service, at which time the Veteran reported that his neck pain had been present for a few weeks. Thus there is no supporting medical evidence of a continuity of pertinent symptomatology based on documented treatment. In this regard, a lengthy period without evidence of treatment may also be viewed as evidence weighing against the Veteran's claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). However, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Indeed, the Veteran's own statements that his lay-observable symptomatology has been continuous can overcome an absence of medical evidence showing such continuity. However, the Veteran has not alleged that his neck symptoms have been continuous since service as demonstrated by his own reported history of having neck pain for a couple of weeks in October 2003. For the above reasons then, service connection on a direct basis must fail. The Board will now consider whether the claim may be allowed on a secondary basis. In regard to secondary service connection, on October 2011 VA examination, the examiner found that a fracture of the lumbar vertebrae does not lead to degenerative changes of the cervical spine. Additionally, on April 2013 VA examination, the examiner opined that the neck condition has not been aggravated or made worse by the lumbar spine disability as evidenced by recent (February 2013) neurology findings, it has not worsened compared to the 2006 neurology examination. The April 2013 VA examination sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examination to be sufficient for appellate review and of high probative value. Moreover, no other evidence of record refutes the examiner's opinion. The Board has also considered the Veteran's belief that his cervical spine disability is due to his service-connected lumbar spine disability. However, while he can report observable symptoms pertaining to the cervical spine, given that the Veteran does not have any special medical expertise, the Board must find that he is not competent to give a medical opinion as to whether his cervical spine disorders are secondary to his service-connected lumbar spine disability. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). In conclusion, a preponderance of the evidence is against the claim for service connection for cervical spine disability under a direct and secondary basis. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). II. Increased Rating-Lumbar Spine Degenerative Joint Disease A. Legal Criteria Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service-connected lumbar spine degenerative disc disease with osteoarthritis status post fracture of L3-4 has been rated under Diagnostic Code 5242 for degenerative arthritis of the spine. See 38 C.F.R. § 4.71a (2012). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, including degenerative arthritis of the spine (DC 5242). See 38 C.F.R. § 4.71a. The General Rating Formula provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching, in the area of the spine affected by the residuals of injury or disease: A 20 percent evaluation is warranted where there is 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, A 30 percent evaluation is warranted where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine, A 40 percent evaluation is warranted where there is 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, A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. 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, DCs 5235-5243 (2012). Intervertebral disc syndrome (preoperatively or postoperatively) 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 incapacitating episodes have a total duration of at least six weeks during the past 12 months. A 40 percent evaluation is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Note 1 states that 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. See 38 C.F.R. § 4.71a, DC 5243 (2012). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2012). The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2012). Rather, to support an increased rating pain must result in functional loss, in terms of limitations in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. B. Analysis As noted in the introduction section of this decision, above, in a June 2013 rating decision, the AMC granted service connection for left lower extremity radiculopathy and assigned a 10 percent disability rating, effective June 6, 2013. The Veteran has until June 6, 2014, to submit a notice of disagreement with the AMC's determination should he wish to initiate an appeal of the rating assigned or effective date for left lower extremity radiculopathy; those matters are not within the Board's current jurisdiction. See 38 U.S.C.A. §§ 7104, 7105. i. Prior to June 6, 2013 Based on a review of the medical evidence, the Board acknowledges that the point at which pain began was not reported during range of motion testing on multiple VA examinations; however, as held in Mitchell, pain alone does not rise to the level of functional loss. On November 2004 VA examination, the Veteran exhibited forward flexion to 85 degrees, extension to 15 degrees, bilateral lateral flexion was to 15 degrees on each side, and bilateral lateral rotation was to 30 degrees on each side. The examiner opined that with repetitive motion the range of motion would decrease as follows: forward flexion would go from 85 to 80 degrees, extension from 15 to 12 degrees, bilateral lateral flexion from 15 to 12 degrees, and rotation would not be effected. An increased in the restriction of motion of his back would be on the basis of pain. It would not have any effect on weakness, fatigue, or lack of endurance. The major functional impact would be on the basis of pain. The Veteran reported that he occasionally used a cane. He did not need any assistance with activities of daily living. There was no deformity or malalignment On December 2010 VA examination, the Veteran reported that he had flare-ups every two to three weeks, which lasted for hours. He indicated that he experienced additional limitation of movement. The Veteran had a history of fatigue, decreased motion, stiffness, weakness, and spine pain. On examination, his posture and gait were normal. There were no abnormal spinal curvatures. There was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Ranges of motion were reported as the following: flexion was to 65 degrees, extension was 30 degrees, right lateral flexion was 20 degrees, left lateral flexion was 20 degrees, and bilateral rotation was 40 degrees. There was objective evidence of pain with range of motion testing. There were no additional limitations after three repetitions of range of motion. The combined range of motion was 195 degrees. There were no effects on the activities of daily living. Overall, even considering the Veteran's additional functional loss due to pain, there was no evidence that flexion was limited to 30 degrees or less to warrant a higher, 40 percent, rating under the General Rating Formula. The most restrictive flexion documented was to 65 degrees with no additional limitations after three repetitions of range of motion. Additionally, the Board has considered VA treatment records and there are no additional functional factors present to serve as a basis for an evaluation in excess of the Veteran's currently assigned 20 percent on the basis of limitation of motion. The Board recognizes the Veteran's statements attesting to his fatigue, flare-ups, decreased motion, stiffness, weakness, and spine pain. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). His credibility also is undisputed because no reason is found to doubt him and his statements have been consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997) The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased disability rating for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain in this case as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. The Board observes that the Veteran's competent and credible reports of fatigue, flare-ups, decreased motion, stiffness, weakness, and spine pain. The Board recognizes that he has had limited range of motion due to pain. Even so, the Board finds that the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish pain, weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased rating. Based on ranges of motion referenced above, ankylosis (defined as a fixation of the joint) has neither been alleged nor shown. Therefore, there is no basis for a higher rating due to favorable ankylosis of the entire thoracolumbar spine (40 percent), unfavorable ankylosis of the entire thoracolumbar spine (50 percent), or unfavorable ankylosis of the entire spine (100 percent) the General Rating Formula. In addition, consideration has been given as to whether a higher disability rating could be assigned under Diagnostic Code 5243, intervertebral disc syndrome (IVDS), on November 2004 VA examination, the Veteran reported that he had occasional flare-ups, which happened every other month and could last for weeks. He indicated that the flare-ups were were relieved by chiropractic treatment and rest. On December 2010 VA examination, he reported that he had flare-ups every two to three weeks, which lasted for hours. Sharp movements precipitated pain and rest alleviated symptoms. The examiner reported that there were no incapacitating episodes. Here, although the Veteran has competently and credibly reported experiencing flare-ups that were alleviated by chiropractic treatment and rest, there is no indication in the record and the Veteran has not alleged that he has ever been prescribed bed rest for these episodes by a physician. See Note (1). Additionally, on December 2010 VA examination, the examiner specifically reported that there were no incapacitating episodes. Therefore, there is no evidence either on VA examination reports or in the VA treatment records that he has ever been prescribed bed rest for a total duration of at least four weeks in a 12 month period to warrant a higher 40 or 60 percent rating. Thus, the Board finds that a higher disability rating under Diagnostic Code 5243 is not appropriate. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 20 percent for the appeal period prior to June 6, 2013, and therefore the claim must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ii. From June 6, 2013 Based on a review of the evidence, the Board finds that a rating in excess of 40 percent is not warranted. On June 2013 VA examination, forward flexion was to 60 degrees with pain at 55 degrees, extension was to 20 degrees with pain at 15 degrees, bilateral lateral flexion was to 30 degrees with pain at 30 degrees on each side, and bilateral lateral rotation was to 30 degrees on each side. He did not have additional limitation in range of motion following repetitive-use testing. He did have functional loss/impairment after repetitive use in that he had less movement than normal, pain on movement, deformity, and kyphoscoliosis. He did not have tenderness or pain to palpation. He did not have guarding or muscle spasm. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. During his June 2013 VA examination, the Veteran reported that he had pain, stiffness, weakness, and muscle spasm. He indicated that he had flare-ups that impacted the function of the thoracolumbar spine in that he could not lift greater than 5 pounds, stand for longer than 10-15 minutes, walk for more than 5 minutes, sit for longer than 10-15 minutes, and had problems sleeping. However, an increased disability rating for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain in this case as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. The Board observes that the Veteran's competent and credible reports of flare-ups, stiffness, weakness, pain, and muscle spasm. The Board recognizes that he has had limited range of motion due to pain. Even so, the Board finds that the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish pain, weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased rating. Additionally, the Board has considered VA treatment records and there are no additional functional factors present to serve as a basis for an evaluation in excess of the Veteran's currently assigned 40 percent on the basis of limitation of motion. Based on ranges of motion referenced above, ankylosis (defined as a fixation of the joint) has neither been alleged nor shown. Therefore, there is no basis for a higher rating due to unfavorable ankylosis of the entire thoracolumbar spine (50 percent), or unfavorable ankylosis of the entire spine (100 percent) the General Rating Formula. Furthermore, on June 2013 VA examination, the examiner found that the Veteran did have IVDS, however, the Veteran specifically denied hospitalization, emergency room visits, or a doctor's prescription for bed rest within the past year. Therefore, as there is no evidence on either the VA examination report or in the VA treatment records that he has been prescribed bed rest for a total duration of at least six weeks in a 12 month period. Thus, the Board finds that a higher disability rating under Diagnostic Code 5243 is not appropriate. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 40 percent for the appeal period prior to June 6, 2013, and therefore the claim must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Extraschedular Considerations Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "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." 38 C.F.R. § 3.321(b)(1). The question of an Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "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." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's disability, as discussed above, is manifested by limitation of motion and associated complaints. This symptomatology is contemplated by the rating criteria. On November 2004 VA examination, the Veteran reported that he worked for 16 years as an aircraft mechanic and has not worked since he retired in 1994. On December 2010 VA examination, the examiner indicated that in regards to the Veteran's lumbar spine disability, there were no effects on usual occupation and work-related problems. On June 2013 VA examination, the examiner reported that the Veteran's thoracolumbar spine condition impacted the Veteran's ability to work in that he could not do prolonged standing, walking, or heavy lifting employment. However, he would be able to do sedentary, nonphysical work. The examiner described the Veteran's functional limitations as mild. At no point throughout the appeal periods have incapacitating episodes been alleged or shown. The rating criteria are intended to compensate for considerable time lost from work consistent with the percentage rating. 38 C.F.R. § 4.1 (2012). The rating criteria also take into account the pain, limitation of function and effects on employment reported in the record. Hence, referral for consideration of extraschedular ratings is not warranted at any point throughout the appeal. Thun, 22 Vet. App. 114-15. D. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all claims for an initial rating where unemployability is raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). In this case there is no evidence that the Veteran's service-connected lumbar spine degenerative joint disease has caused unemployability. The evidence reflects that the Veteran is a retired aircraft mechanic and that he has not worked since he retired in 1994. On December 2010 VA examination, the examiner reported that there were no effects on usual occupation and work-related problems. While on June 2013 VA examination, the examiner reported that the Veteran's thoracolumbar spine condition impacted the Veteran's ability to work, the examiner found that the Veteran would be able to do sedentary, nonphysical work. The examiner described the Veteran's functional limitations in regards to his service-connected lumbar spine disability as mild. There were mild functional limitations. As there is no evidence of unemployability due to his service-connected lumbar spine disability, or any other service-connected disabilities, further consideration of entitlement to TDIU is not required. ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to June 6, 2013 and a rating in excess of 40 percent from that date is denied. ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs