Citation Nr: 1325443 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 12-31 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease. 2. Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative disc disease. 3. Entitlement to an effective date earlier than December 30, 2011, for grant of service connection for amyotrophic lateral sclerosis (ALS). 4. Entitlement to an effective date earlier than January 19, 2012, for the award of a 100 percent rating for ALS. 5. Whether an August 8, 2001, VA rating decision that granted service connection for benign tremors should be revised or reversed on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to May 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. 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). (The decision below addresses the Veteran's claims for increased ratings for his lumbar and cervical spine disabilities. The remaining issues are addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. Lumbar spine degenerative disc disease has been manifested by painful motion, flare-ups, spasm, and fatigue with functional loss that does not equate to limitation of flexion to 30 degrees or less. 2. Cervical spine degenerative disc disease has been manifested by painful motion and flare-ups with functional loss that does not equate to limitation of flexion to 15 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a rating greater than 20 percent for cervical spine degenerative joint disease and degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to increased rating claims, the VCAA requires only generic notice, that is, 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. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). Here, the RO received the Veteran's increased rating claims in January 2011. That same month, the RO sent to him a letter advising him of the need to submit evidence showing that his service-connected lumbar and cervical spine disabilities had increased in severity. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates and stated that in determining the appropriate disability rating, the RO would consider the impact of the disability and its symptoms on employment. The RO informed the Veteran that he should submit evidence regarding how his disability affected his ability to work, to include evidence from employers regarding job performance. The letter further stated that the Veteran could submit statements from individuals who were able to describe their observations of the Veteran's disability and the way in which it had worsened. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the January 2011 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. All available relevant evidence pertaining to the Veteran's claim has been obtained. The evidence includes the Veteran's VA examination reports, VA treatment records, and private treatment records, as well as statements from the Veteran and his wife, to include their hearing testimony. The Veteran has not identified any outstanding relevant records and the Board is aware of none. In this regard, the Board notes that the Veteran testified that he received treatment at the Malmstrom Air Force Base in Great Falls, Montana; however, he indicated his last treatment was three years prior. Thus, records from that facility would not be dated during the relevant time period. The Veteran was also provided with several VA examinations in connection with his claim for increased disability ratings. A review of the VA examination reports of record shows that the VA examiners reviewed the relevant evidence and examined the Veteran and that the examinations included range-of-motion findings. The examination reports reflect that the examiners considered the Veteran's subjective complaints and past medical history. Notably, the examination reports show that the examiners also specifically considered the factors required by DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Board finds that the examination reports, along with the other lay and medical evidence of record, contain sufficient evidence by which to evaluate the Veteran's service-connected lumbar and cervical spine disabilities in the context of the pertinent regulations and throughout the claims period. Accordingly, the Board has properly assisted the Veteran by affording him an adequate VA examination in connection with the rating claims decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board has considered the Veteran's argument raised during his hearing that the July 2012 VA examination was not adequate. Reviewing the examination report in consideration of the Veteran's assertions, which are less than clear, the Board does not agree that the examination was in any way deficient. The examiner provided range-of-motion findings, discussed the DeLuca factors, noted the Veteran's subjective complaints, and provided an assessment of the Veteran's disabilities, to include their functional and occupation impacts. It is not apparent to the Board that the examination report is missing any relevant information or that the information contained therein is in any way inaccurate or falsified. II. Increased Rating Claims A. Background A review of the record shows that in January 2011, the Veteran filed a claim for increased compensation for his service-connected cervical and lumbar spine disabilities. Private treatment records dated that same month show that the Veteran presented with complaints of neck pain, which he described as severe but not constant. He indicated that his neck pain prevented him from lifting heavy weights, reading as much as he would like to, driving as long as he would like, and engaging in recreational activities. The Veteran reported having near-constant headaches, but stated the he was able to concentrate fully with only slight difficulty, and was able to do his usual work. He indicated moderate sleep disturbance on account of his neck pain. Regarding his back pain, the Veteran stated that the pain was severe and did not vary much. He indicated that his back pain prevented him from lifting heavy weights, walking more than one mile, sitting for more than 30 minutes, and standing for more than one hour. He stated that his nightly sleep was reduced by less than one-half on account of his back pain and his social life was restricted. A February 2011 private treatment entry notes the Veteran's assertion of pain extending into the groin and buttocks bilaterally. The Veteran denied pain radiating to his legs and stated that he did not experience lower extremity numbness. The Veteran also denied any bowel or bladder dysfunction. The veteran described his neck pain as an aching pain with a shooting component. He reported occipital headaches and interscapular pain, and noted the presence of numbness in his ring and pinkie fingers. Examination of the cervical spine revealed no midline tenderness, no paracervical tenderness, and no spasm. He had good flexion, but decreased extension, rotation, and tilting bilaterally. Examination of the lumbar spine revealed some lumbar pain in the midline, but no sacroiliac joint tenderness and no paralumbar tenderness, but the mid-lumbar paralumbar musculature was a bit tight. The Veteran was noted to have decreased flexion, decreased extension, and decreased tilting. A magnetic resonance imaging (MRI) study showed mild degenerative changes of the cervical spine and lumbar spine. The examiner stated that he Veteran was not showing any radicular complaints, but may have a some ulnar neuropathy. In a February 2011 statement, the Veteran reported decreased range of motion in his back and neck, as well as constant pain that increased with movement. He reported recently experiencing catching/locking in his back and stated that he had trouble with personal care that involved bending over or standing on one leg. He also indicated being unable to engage in recreational activities such as hunting, fishing, gardening, riding horses, and dancing, and stated that he was no longer able to care for his horses. The Veteran's wife also submitted a statement wherein she reported similar observations. Also in February 2011, the Veteran was afforded a VA examination in connection with his claim for increased ratings for his cervical and lumbar spine disabilities. Regarding his thoracolumbar spine, the Veteran reported a progressive worsening of pain, with occasional radiating pain to the lower extremities. He also indicated one time having pain into his testicles, which he stated his urologist had suggested might be due to his back. The Veteran reported flare-ups daily, lasting for a day, during which he experienced increased pain and associated symptoms of stiffness, spasm, lack of endurance, fatigue, and decreased motion. The Veteran denied incapacitating episodes and stated that he had not missed work due to his back pain, but did have some difficulty at work. There was no evidence of weakness, spasm, instability, giving way, locking, fatigability, numbness, paresthesias, saddle anesthesia, leg or foot weakness, bladder or bowel complaints, erectile dysfunction, swelling, heat, or redness. Similarly, the Veteran did not report poor balance, frequent falls, weight loss, fevers, malaise, or dizziness. The Veteran indicated that his back pain was precipitated by bending and lifting activities, and stated that it prevented him from shoeing horses, throwing hay, gardening, hunting, and dancing, and engaging in any activity that involved bending and twisting. He reported being able to perform his usual occupation with restrictions. Regarding his cervical spine, the Veteran reported a progressive worsening of pain and flare-ups daily, with no significant impairment during the flare-up. He reported associated symptoms of weakness and stiffness, but denied instability, giving way, locking, fatigability, lack of endurance, paresthesia, swelling, heat, and redness. The Veteran stated that he had difficulty driving and walking due to his limited line of vision, and reported the same limitation of activities. Similarly, the Veteran denied incapacitating episodes or having missed work due to his cervical spine disability. Physical examination of the Veteran failed to reveal any evident, acute, chronic, or physical distress. His gait was even, posture erect, stance normal, and ambulatory balance steady without the use of aids or braces. The Veteran sat during the interview, with a few position changes for comfort. It was indicated that he was able to change position, and climb on and off of the examination table. Range of motion testing for the thoracolumbar spine revealed flexion to 80 degrees with complaints of pain; extension to 10 degrees with complaints of pain; left lateral flexion to 20 degrees with complaints of pain; right lateral flexion to 15 degrees with complaints of pain; left lateral rotation to 20 degrees with complaints of pain; and right lateral rotation to 15 degrees with complaints of pain. The examiner indicated that the Veteran's complaints of fatigue, weakness, and lack of endurance did not further limit his motion beyond the documented range. There was no clinical evidence of additional limited function with repetition due to pain, fatigue, weakness, or lack of endurance. There was also no objective evidence of edema, effusion, instability, abnormal movement, or guarding of movement. No spinal abnormalities were observed and ankylosis was not present. Neurological and motor examinations yielded normal results. Regarding the Veteran's cervical spine, there was no objective evidence of painful motion, spasm, weakness, tenderness, or postural abnormalities. Range of motion testing for the cervical spine revealed flexion to 40 degrees; extension to 30 degrees; left lateral flexion to 30 degrees; right lateral flexion to 30 degrees; left lateral rotation to 60 degrees; and right lateral rotation to 60 degrees. The examiner indicated that the Veteran's complaints of fatigue, weakness, and lack of endurance did not further limit his motion beyond the documented range. Repetitive testing produced no change in range of motion or reported symptoms. The examiner observed no difficulty walking due to limited line of vision, and there was no evidence of restricted opening of the mouth, breathing limits due to diaphragmatic respiration, dyspnea, dysphasia, atlantoaxial or cervical subluxation or dislocation. Upon examination of the Veteran, the examiner provided her opinion that the Veteran's lumbar and cervical spine disabilities had increased in severity, noting that MRI results showed a worsening of the Veteran's condition from 2001 to 2011. In a July 2011 decision, the RO denied ratings greater than 20 percent for the Veteran lumbar and cervical spine disabilities. In disagreeing with that decision, the Veteran asserted that he had significant ankylosis, as well as very little forward flexion. The Veteran alleged that should he exert himself in any demanding way, he would need two or three days to recover. He stated that he could hardly move from his bed to the bathroom, let alone take care of his household responsibilities, stating that his back and neck condition had "cost [him] a good two to three months of down time being housebound/bedridden." Results of a private electromyography (EMG) and nerve conduction study (NCS) conducted in February 2012 were suggestive, but not diagnostic, for a lower motor neuron disease. There was no evidence of a polyneuropathy, mononeuropathy, radiculopathy, or myopathy of the examined extremities. A possible diagnosis of ALS was discussed. (Service connection for ALS was later granted by the RO in March 2012.) VA treatment records dated in April 2012 show that the Veteran presented for a physical therapy consultation and MRI. He reported all positions produced pain, but lying down provided the most relief. His pain was isolated to the low back and buttocks. The Veteran reported having to quit his previous job doing manual labor and stated that he then did desk work due to this back pain. He indicated being able to lift 50 pounds straight forward, but stated that doing any twisting or bending with twisting caused severe pain. He denied loss of bowel or bladder control, saddle paresthesia, or buckling. In July 2012, the Veteran was afforded a VA examination in connection with his claim for increased compensation for his service-connected ALS based on the need for aid and attendance and/or being housebound, which examination included examination of the Veteran's thoracolumbar and cervical spines. The examiner reviewed the claims folder, to include the results of the recent MRI and noted decreased strength against resistance and decreased flexion and extension since the February 2011 VA examination, but stated that it could not be determined whether this was due to the Veteran's back disability or his ALS without resorting to mere speculation. Range-of-motion testing revealed flexion to 70 degrees, with pain beginning at 10 degrees; extension to 10 degrees, with pain beginning at 5 degrees; right lateral flexion to 25 degrees, with pain beginning at 15 degrees; left lateral flexion to 30 degrees, with pain beginning at 15 degrees; right lateral rotation to 25 degrees, with pain beginning at 15 degrees; and left lateral rotation to 30 degrees, with pain beginning at 15 degrees. Upon repetitive testing, the Veteran had only a decrease in flexion to 60 degrees. The examiner also noted excess fatigability, incoordination, and pain on movement. There was tenderness upon palpation of the lumbar paravertebral muscles, but no guarding or muscle spasm. Muscle strength testing showed active movement against some resistance and there was no evidence of muscle atrophy. Sensory examination was normal and straight leg raising test results were negative. The examiner found no signs or symptoms due to radiculopathy. Intervertebral disc syndrome was noted, but incapacitating episodes were not. Regarding the occupational impact of the Veteran's lumbar spine disability, the examiner noted that the Veteran would at least as likely as not have difficulty with prolonged weight-bearing activities, bending and/or stooping, pushing, pulling, and lifting and carrying. Examination of the Veteran's cervical spine revealed flexion to 40 degrees, with pain beginning at 30 degrees; extension to 15 degrees, without pain; right lateral flexion to 30 degrees, with pain beginning at 15 degrees; left lateral flexion to 25 degrees, with pain beginning at 15 degrees; right lateral rotation to 60 degrees, with pain beginning at 15 degrees; and left lateral rotation to 50 degrees, with pain beginning at 15 degrees. Upon repetitive testing, the Veteran experienced a slight decrease in range of motion and the examiner noted weakened movement, excess fatigability, and pain on movement. There was tenderness upon palpation of the joints/soft tissue of the cervical spine. Muscle strength testing showed active movement against some resistance and there was no evidence of muscle atrophy. Sensory examination was normal and there was no evidence of radicular pain or other signs or symptoms due to radiculopathy. Intervertebral disc syndrome was noted, but incapacitating episodes were not. Regarding the occupational impact of the Veteran's lumbar spine disability, the examiner noted that the Veteran would at least as likely as not have increased difficulty with overhead activities, pushing and pulling, and lifting and carrying. In June 2013, the Veteran testified at a Board hearing, during which he asserted that all of his VA treatment records reflected a greater degree of disability and limitations than was reflected in the most recent VA examination report. He reported having exacerbating episodes that prevented him from doing a lot of normal daily activities and argued that the July 2012 examination was inadequate and not reflective of the true nature of his disabilities. The Veteran reported having muscle spasms upon repetitive flexion and asserted his belief that his back and neck disabilities had significantly worsened since initially rated in 2001. B. Analysis Service connection for cervical and lumbar spine disabilities was granted from June 2001 and evaluated as 20 percent disabling since that time. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Further, "[w]here 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 (2012). 1. Lumbar Spine Rating Turning first to the appropriate rating for the Veteran's lumbar spine disability, the General Rating Formula for spine disabilities provides for a provides for a 10 percent evaluation when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, when vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DCs 5235-5243 (2012). A 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is assigned where forward flexion of the thoracolumbar spine is 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Lastly, a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Thus, to be entitled to a higher schedular rating for his lumbar spine degenerative disc disease, the evidence must show that the Veteran can achieve no more than 30 degrees of forward flexion of the thoracolumbar spine, or that there is ankylosis. Upon review of the evidence, the Board finds that the Veteran is not entitled to a rating greater than the currently assigned 20 percent under the General Rating Formula for Diseases and Injuries of the Spine for his lumbar spine degenerative disc disease. In this regard, the evidence shows that the Veteran is unable to achieve a full range of thoracolumbar motion. See 38 C.F.R. § 4.71a, Plate V (2012). However, in February 2011, he was able to achieve flexion to 80 degrees, with pain. Although it was not specifically noted at which point he began to experience pain, the examiner stated that the Veteran's pain did not further limit his motion beyond the documented range, which would suggest that his pain began at 80 degrees. On examination in July 2012, the Veteran was able to achieve flexion to 70 degrees, with pain beginning at 10 degrees. Thus, while the Veteran's range-of-motion findings variously represent less than a full range of thoracolumbar spine motion, see 38 C.F.R. § 4.71a, Plate V, they do not indicate that his thoracolumbar motion is limited to 30 degrees of flexion, the criteria for a 40 percent evaluation under the General Rating Formula for spine disabilities. The Board notes that, when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss a veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). DeLuca, supra. Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. In the instant case, the Veteran has reported his main symptoms to be back pain, spasm, and limited motion. Here, the most favorable probative evidence showed flexion limited to 10 degrees on account of pain. Despite the point at which his pain sets in, the Veteran was still able to achieve flexion to a degree greater than that which would be compensable. Notably, the United States Court of Appeals for Veterans Claims (Court) has affirmed that pain itself does not constitute functional loss and "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' 38 C.F.R. § 4.40, in order to constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Thus, an evaluation in excess of the minimum compensable rating on account of pain must be based on demonstrated functional impairment. Given the Veteran's ability to achieve flexion to 70 degrees, it is clear that his pain did not result in a functional loss equivalent to that which would warrant a rating greater than 20 percent under the General Rating Formula for disabilities of the spine at the time of the July 2012 VA examination. The Board also finds that the Veteran's complaints of pain have been accounted for by his 20 percent rating, as forward flexion to 70 degrees would not qualify him for even the minimum 10 percent rating under the General Rating Formula. Further, examination of the Veteran has failed to reveal any additional weakness, fatigability, incoordination, restricted range of motion, or functional impairment with repetitive testing, save for the most recent examination that showed a slight decrease in flexion to only 60 degrees. From a functional standpoint, it has been noted that the Veteran had less movement than normal, excess fatigability, and pain on movement; however, he has clearly been able to achieve a greater range of motion than that required for a 40 percent disability rating, even taking into account the DeLuca factors, at all times since filing his claim for increased compensation. Moreover, as demonstrated by the range-of-motion findings of record, there is no evidence of ankylosis, as the Veteran's thoracolumbar spine does not appear to be fixed or immobile. (The Board notes that ankylosis is defined as the immobility or fixation of a joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) ("Ankylosis 'is [s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,'" quoting Stedman's Medical Dictionary 87 (25th ed. 1990)).) Accordingly, as the evidence reveals that the Veteran's flexion is not limited to 30 degrees or less, even with consideration of functional loss, the Board finds that a rating greater than the currently assigned 20 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. As the evidence of record also indicates the presence of intervertebral disc syndrome, the Board has considered whether the Veteran is entitled to a rating greater than 20 percent based on incapacitating episodes. Ratings for intervertebral disc syndrome are based on total duration of incapacitating episodes during the past 12 months. See 38 C.F.R. 4.71a, DC 5243. Note 1 of DC 5243 provides that, for purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Notably, the Veteran has not alleged, nor does the evidence of record suggest, that he experiences incapacitating episodes, such that a physician has prescribed bed rest, on account of his lumbar spine disability. Although the Veteran has indicated flare-ups and exacerbating episodes, those do not equate to incapacitating episodes as defined by regulation. Accordingly, the Board can find no basis upon which to assign a rating greater than 20 percent under the Formula for Rating Intervertebral Disc Syndrome. See 38 C.F.R. 4.71a, DC 5243. 2. Cervical Spine Rating Relevant to rating disabilities of the cervical spine, the General Rating Formula for spine disabilities provides for a 10 percent evaluation when forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, when the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, when vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent evaluation is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, where the combined range of motion of the cervical spine is not greater than 170 degrees; or, where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent evaluation is assigned where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. Id. Lastly, a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Thus, to be entitled to a higher schedular rating, the evidence must show that the Veteran can achieve no more than 15 degrees of forward flexion of the cervical spine, or that there is ankylosis. Upon review of the evidence, the Board finds that the Veteran is not entitled to a rating greater than the currently assigned 20 percent for his cervical spine degenerative disc disease under the General Rating Formula for disabilities of the spine. In this regard, the evidence shows that in February 2011, the Veteran was able to achieve cervical flexion to 40 degrees. On examination in July 2012, the Veteran was able to achieve cervical flexion to 40 degrees, with pain beginning at 30 degrees. While range-of-motion findings represent less than a full range of cervical spine motion, see 38 C.F.R. § 4.71a, Plate V, there is no indication that cervical spine flexion is limited to 15 degrees or less, the criteria for 30 percent evaluation under the General Rating Formula for disabilities of the spine. The Board has also considered the DeLuca factors, but finds that even in consideration of these factors, to include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse, a rating greater than the currently assigned 20 percent is not warranted. Notably, while the Veteran reported pain at 30 degrees of flexion during the most recent examination, he has been able to achieve flexion beyond that which would be considered 30 percent disabling. Given the Veteran's ability to achieve flexion to 30 degrees, it is clear that his pain did not result in a functional loss equivalent to that which would warrant a rating greater than 20 percent under the General Rating Formula for disabilities of the spine at the time of the July 2012 VA examination. See Mitchell, supra. Further, while testing and repetitive testing revealed decreased ranges of motion, excess fatigability, weakened movement, and painful movement, the Veteran has clearly been able to achieve a greater range of cervical motion than that required for a 30 percent disability rating, even taking into account the DeLuca factors, at all times since filing his claim for increased compensation. Moreover, as demonstrated by the range-of-motion findings of record, there is no evidence of ankylosis, as the Veteran's cervical spine does not appear to be fixed or immobile. See Dinsay, supra. Accordingly, as the evidence reveals that the Veteran has a demonstrated range of cervical motion and that his flexion is not limited to at least 15 degrees, even with consideration of functional losses, the Board finds that a rating greater than the currently assigned 20 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. Similarly, the Veteran is not entitled to a rating greater than the currently assigned 20 percent based on incapacitating episodes because although the examiner indicated intervertebral disc syndrome, there is no evidence to suggest that the Veteran has suffered from incapacitating episodes such that a physician has prescribed bedrest. See 38 C.F.R. 4.71a, DC 5243, Note 1 C. Associated Objective Neurologic Abnormalities The General Rating Formula requires associated objective neurologic abnormalities to be evaluated separately under an appropriate DC. In the instant case, the Board finds that the clinical evidence of record fails to show objective neurologic abnormalities associated with the Veteran's lumbar and/or cervical spine disabilities. While the Veteran has at times complained of pain in his groin, buttocks, and fingers, and of numbness in his lower extremities, there is no indication that any such intermittent symptom is a neurologic manifestation of the Veteran's cervical or lumbar spine disability. Indeed, neither VA examiner found evidence of radiculopathy or radicular symptoms, and straight leg raising test results were negative. Further, the private EMG and NCS conducted in February 2012 revealed no evidence of a polyneuropathy, mononeuropathy, radiculopathy, or myopathy of the examined extremities. The Veteran has also consistently denied bowel and/or bladder dysfunction. Although the Veteran indicated that his urologist suggested that his testicular pain may be related to his back, there is no objective evidence to support this suggestion and no other clinician has shared in this belief. D. Miscellaneous Considerations The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. In this regard, the Board finds that the symptoms of the Veteran's lumbar and cervical spine disabilities are not so exceptional or unusual such that the schedular criteria does adequately compensate for them. Here, the Veteran's main symptoms have been pain, flare-ups, decreased motion, and limitation of activities. The Board does not find that the Veteran's symptoms take his case outside the norm such that referral for consideration of a higher evaluation on an extraschedular basis is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R § 3.321(b)(1) (2012). Indeed, the rating schedule compensates for limited motion. Although limitation of activities is not specifically noted in the rating schedule, it is clear the Veteran's activities are limited due to his back pain and decreased motion, which are accounted for by the rating schedule. Further, the Board has considered the Veteran's complaints of headaches, but notes that no medical provider has attributed the Veteran's headaches to his lumbar or cervical spine disabilities. Thus, it cannot be said that the Veteran's headaches warrant referral for extraschedular consideration. Moreover, there is no indication in the record that the Veteran is unemployable on account of his lumbar or cervical spine disability. While his disabilities may impact his ability to function occupationally on account of the fact that he would have difficulty with overhead activities, lifting, pushing and pulling, and carrying, there is no indication in the record, to include the Veteran's own assertions, that he is unable to work due to his lumbar or cervical spine disability. Indeed, while the Veteran asserted he was no longer able to do manual labor, he stated that he had moved to a desk job. As such, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed.Cir.2009) (holding that the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits."). The Board has also considered the Veteran's arguments that the evidence shows a worsening of his lumbar and cervical spine disabilities since 2001. The Board does not dispute that the evidence suggests that the Veteran's disabilities have indeed increased in severity since he was initially granted service connection, as evidenced by objective test results and the VA examiners' statements. However, the worsening of a disability does not automatically entitle a claimant to increased benefits. Rather, the disability must increase in severity to a certain degree to warrant a higher rating. Here, the evidence does not show that service-connected spine disability more nearly approximate the criteria for higher ratings, as he is able to achieve ranges of motion beyond that which would entitle him to even his current rating, were it not for consideration of his pain. For the foregoing reasons, the Board finds that the claims for disability ratings in excess of 20 percent for service connected lumbar and cervical degenerative disc disease must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for increased ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease is denied. Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative disc disease is denied. REMAND In an April 2012 decision, the RO granted service connection for ALS and assigned a 100 percent evaluation, effective from March 8, 2012. That same month, the Veteran expressed his desire to "file for an earlier effective date back to his retirement for his ALS." The Veteran alleged that the medical evidence supported a finding that the first manifestations of ALS existed prior to his retirement from the military. The Veteran was contacted to clarify whether he was attempting to obtain an earlier effective date for ALS on the basis of CUE in an August 2001 decision that had granted service connection for benign tremors, but not ALS, or whether he was submitting a notice of disagreement (NOD) with the effective date assigned for his award of service connection for ALS. The Veteran responded, indicating that he was pursuing both avenues for an earlier effective date. In an August 2012 decision, the RO determined that the August 2001 rating decision did not contain CUE. In an October 2012 decision, the RO assigned a 30 percent rating for ALS, effective December 20, 2011, and a 100 percent rating effective January 19, 2012, noting that the Veteran's service-connected benign tremors had been recharacterized as ALS based on the new diagnosis. The Veteran disagreed with that decision and it was later clarified that he was intending to appeal the effective date assigned for his 30 and 100 percent ratings, and not the disability ratings assigned. In February 2013, the RO received from the Veteran a VA Form 9, wherein he expressed his desire to appeal the denial of an earlier effective date on the basis of CUE in the August 2001 rating decision. The Board finds that this submission constitutes a timely NOD as to the August 2012 rating decision which determined that an August 2001 rating decision was not the product of CUE. 38 C.F.R. § 20.201 (2012) (defining an NOD as "[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction [(AOJ)] and a desire to contest the result."); see Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed.Cir.2002). However, an SOC has not yet been furnished concerning the Veteran's disagreement with August 2012 decision in this regard. An SOC is required when a claimant protests a determination. 38 C.F.R. § 19.26 (2012). To date, no SOC has been furnished concerning the issue outlined above, or at least no SOC has been associated with the either the Veteran's Virtual VA file or the paper claims file that is now before the Board. Therefore, remand is required for the issuance of an SOC regarding the issue of whether an August 8, 2001, VA rating decision that granted service connection for benign tremors should be revised or reversed on the basis of CUE. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The SOC must be issued unless the Veteran's claim is resolved, such as by a complete grant of the benefit sought, or withdrawal of the NOD. The Court has held that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). The present claims for earlier effective dates for the awards of 30 and 100 percent evaluations for ALS would potentially be affected by a finding of CUE in the August 2001 rating action that granted service connection for benign tremors if it is determined that ALS should have been granted at that time. Accordingly, the Board finds that the issue of whether CUE exists in the August 2001 rating action is inextricably intertwined with the current issue on appeal, and resolution of that appeal must take place prior to the Board's consideration of the earlier effective date matters presently before it. Accordingly, the case is REMANDED to the AOJ for the following action: The AOJ must issue a SOC addressing the issue of whether an August 8, 2001, VA rating decision that granted service connection for benign tremors should be revised or reversed on the basis of CUE. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). If, and only if, the appeal is timely perfected, the issue should be returned to the Board for further appellate consideration. If on remand, development is undertaken or evidence is proffered that requires the AOJ to readdress the Veteran's CUE motion and a finding of CUE in the August 2001 rating decision is made, the AOJ should readjudicate the issues of entitlement to an effective date earlier than December 30, 2011, for the award of a 30 percent rating for ALS, and to an effective date earlier than January 19, 2012, for the award of a 100 percent rating for that disability. If such readjudication is undertaken and a benefit sought is not granted, the appellant should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs