Citation Nr: 1328387 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 96-00 669 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for productive changes of the cervical spine from February 25, 1994, to June 2, 1998. 2. Entitlement to an evaluation in excess of 30 percent beginning June 2, 1998, for productive changes of the cervical spine. 3. Entitlement to an initial evaluation in excess of 10 percent for productive changes of the thoracolumbar spine from February 25, 1994, to April 6, 2004. ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant served on active duty from October 1986 to October 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision, by the San Diego, California RO, which granted service connection for productive changes of the cervical spine, evaluated as 10 percent disabling, effective February 25, 1994; service connection was also granted for productive changes of the thoracolumbar spine, evaluated as 10 percent disabling, effective February 25, 1994. Subsequently, in a November 1998 rating action, the RO increased the evaluation for the cervical spine disorder from 10 percent to 30 percent, effective June 2, 1998. In August 2003, the Board remanded the case for evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in November 2004. In June 2005, the Board again remanded the case for further evidentiary development. Another SSOC was issued in January 2008. In July 2008, January 2011, and June 2012, the Board again remanded the case. Review of the record reflects substantial compliance with the Board's directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. During the period from February 25, 1994, to June 2, 1998, the Veteran's cervical spine disorder was manifested by complaints of pain and numbness in the upper extremities, with no significant limitation of motion of the cervical spine; there was no evidence of ankylosis or intervertebral disc syndrome. 2. Since June 2, 1998, the Veteran's cervical spine disorder has been manifested by functional debility equating to severe limitation of motion. However, the Veteran's cervical spine disability has not been manifested by ankylosis, by objective neurological abnormalities or incapacitating episodes requiring prescribed bed rest and treatment, or by severe or pronounced intervertebral disc syndrome. 3. During the period from February 25, 1994, to April 6, 2004, the Veteran's thoracolumbar disorder was manifested by pain, occasional muscle spasm, forward flexion always greater than 60 degrees and combined range of motion of, at worst, 195 degrees. There was no evidence of loss of lateral spine motion, positive Goldthwaite's sign, listing to one side, marked limitation of forward bending in standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space. 4. During the period from February 25, 1994, to April 6, 2004, there were no identified neurological disorders associated with the thoracolumbar spine disorder, and there was no impairment of motor skills, muscle function, or strength. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for productive changes of the cervical spine, during the period from February 25, 1994 to June 2, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.7, 4.40, 4.45, .4.59, 4.71a; Diagnostic Codes 5010, 5290, 5293 (effective prior to September 23, 2002). 2. The criteria for a disability rating in excess of 30 percent for productive changes of the cervical spine, beginning June 2, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5290 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). 3. The criteria for an evaluation in excess of 10 percent, for productive changes of the thoracolumbar spine, during the period from February 25, 1994 to April 6, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40. 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (before and after September 23, 2002) and 5235-5243 (after September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159 , 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). While the notice provided to the Veteran in May 2001was not given prior to the first agency of original jurisdiction (AOJ) adjudication of the claims, the notice was provided by the AOJ prior to the transfer and recertification of the Veteran's case to the Board and notice complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additional letters were issued in February 2004, July 2005, December 2006, March 2007, May 2007, July 2008, December 2008, January 2011, and August 2012. Those letters informed the Veteran of the evidence required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). It also appears that all obtainable evidence identified by the Veteran relative to the claims decided by this decision has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, that would need to be obtained for a proper disposition of these claims. It is therefore the Board's conclusion that the Veteran has been provided with opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The Veteran has been afforded VA examinations on the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the issues addressed in this decision. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The service treatment reports (STRs) indicate that the Veteran received treatment for neck pain and low back pain. The Veteran's initial claim for service connection for low back pain and neck pain (VA Form 21-526) was received in February 1994. In conjunction with his claim, the Veteran was afforded a VA examination in June 1994. At that time, he stated that his neck problems began in 1992; he was stretching on board ship when he suddenly felt a pop in his back. The Veteran indicated that the pain went all the way up and down the back, from the cervical spine down to the sacral area and it was very painful. The Veteran indicated that no x-rays were taken; he was put on Flexeril and bed rest. The Veteran indicated that he occasionally experienced stiffness and soreness in his neck and back, he noted that this goes down the left side of the muscles of the entire spine. On examination, there was normal range of motion in the cervical spine area. There was no pain or tenderness. Backward extension was to 90 degrees, forward flexion was to 70 degrees, right and left lateral flexion were to 40 degrees, and the right and left lateral rotation were to 60 degrees. Rotation was painful to both the left and right sides. The biceps, triceps and radial reflexes were normal and sensation was normal in the upper extremities. It was noted that the lumbar spine showed no postural abnormality and no fixed deformity. The lumbar spine showed full range of motion with 110 degrees of forward flexion and 35 degrees of backward extension, with 35 degrees of right and left lateral flexion, and 60 degrees of right and left lateral rotation. Flexion to the left was painful and rotation to the right was painful. The Veteran had no trouble with changing positions from sitting to standing or from supine to sitting. He had no difficulty whatsoever. There was no neurological deficit. X-ray study of the cervical spine revealed loss of height of the bodies of C4 and C5 with increase in AP diameter, compatible with prior trauma. Very minimal lipping was seen along the anterior margins of those vertebrae. There was also slight reverse of the normal cervical curvature in the mid-cervical spine. Old trauma was suspected. The cervical spine was otherwise unremarkable radiographically. No significant encroachment was present upon the neural foramina. Of record is the report of an x-ray study of the cervical spine, conducted in August 1996, which showed some endplate irregularity in the cervical spine, particularly at the C4-5 level, with slight reversal of the normal cervical lordotic curve centered at approximately C4. It was noted that this is probably developmental, and may relate to childhood apophysitis with a childhood injury less likely. The facet joints were normal. The atlantoaxial joint was unremarkable as well. There was slight wedging at T12 which was also probably developmental and perhaps related to apophysitis as well. There were no acute findings. On the occasion of a VA examination in April 1997, the examiner noted that the Veteran does have a postural abnormality. He sat in a chair during the interview and the taking of history and he simply did not move his trunk or body at all. He would rotate occasionally in the chair and would twist his eyes around to look to the right and left, but certainly would not turn his head and neck around. The spine was straight. There was no flexion deformity, no scoliosis, no tilt to either side; he just held his spine completely rigid and straight. The examiner noted that the Veteran had very little difficulty getting his shoes and trousers on and off. He leaned over to get them and untie the shoes and take them off. He had no trouble with change of position from sitting to standing. He got on and off the examining table without difficulty. He changed position on the examining table from supine to sitting with minimal troubles; he came up with a little grunt and a groan, but he held his back very stiff as he came up from the supine to the sitting position, he did not have to pull with his hands. The range of motion of the lumbar spine showed 90 degrees of forward flexion and 20 degrees of backward extension. There was 30 degrees of tilt to the left and right, and 30 degrees of rotation to the left and right. All these motions, he said, were painful. The examiner noted that the Veteran flinched as he went through the motions. The cervical spine had 70 degrees of forward flexion and 70 degrees of backward extension. While the Veteran reported that the motions were painful, he did not flinch with these movements. He had 40 degrees of tilt to the left and right. He complained of pain with lateral tilt to both the left and right side. Rotation to the right was 40 degrees and painful and he did not go any further. Rotation to the left was 70 degrees without pain. The neurological evaluation was normal. He had active biceps, triceps, and radial reflexes; there were no abnormal reflexes. Sensation was completely normal in the two upper extremities and in the cervical spine area. In the lower extremities, the patellar and Achilles reflexes were active and were symmetrical; there were no abnormal reflexes. Sensation was normal in the back and in the two lower extremities. Sensation was completely normal to both pinprick and light touch in all four extremities and in the cervical, thoracic and lumbar spine area. Straight leg raising in the sitting position was to 90 degrees on either side and there was no back or leg pain. Straight leg raising and bent leg raising in the supine position were full and complete. The examiner noted that the Veteran did complain of some back pain with 90 degrees of straight leg raising both leg and right side, but there was no leg pain with his straight leg raising. Muscle power in the upper and lower extremities was excellent; he had tremendous musculature. It was noted that X-ray study of the lumbar spine revealed no changes from 1994; there was progression of mid-cervical spine degenerative disease. The x-ray showed stable anterior wedging of T12 and mild lower thoracic scoliosis; otherwise unremarkable thoracic spine. The pertinent diagnosis was cervical spine pain and lumbar spine pain; these were muscular pains. The examiner stated that he saw no evidence of nerve root irritation, but the Veteran did complain of pain and he held his back very rigidly. He had some limitation of motion and he had painful motion. There was no weakness, fatigability or incoordination. The Veteran did complain of flare-ups and he complained of pain with flare-ups. The Veteran was afforded another VA examination in June 1998. Examination of the torso revealed an extremely well- developed individual with a large bulging well-defined muscle mass. There was evidence of previous surgery on the anterior aspect of the right shoulder but none on the left. The Veteran held his head and neck quite stiffly and resisted all movements of the neck. He resisted any extension of the cervical spine and flexed no more than 30 degrees. Lateral bend was no more than 20 degrees bilaterally and rotation was limited to no more than 45 degrees bilaterally. Again, there was no indication of any muscle atrophy or underdevelopment of the musculature of the Veteran's upper back, neck and shoulders. If anything, he is considered to be overly developed by the rather dramatic muscular development. Deep tendon reflexes were very weak in the upper extremities and barely elicited to the left. This is, biceps were absent on the right and left. Radial was absent on the right and trace on the left. Triceps was absent on the right and trace on the left. The pertinent diagnosis was cervical spine marked limitation of both active and passive motion but no obvious objective evidence of underlying clinical abnormality. The examiner noted that the Veteran appeared to have rather significant impairment of clinical function with regard to his ability to look overhead or do any rotary motions of the head and neck. Received in November 1998 were treatment reports from Kaiser Permanente, dated from January 1998 to November 1998. A physical therapy report, dated in February 1998, reflects a diagnosis of neck and mid-lower back spasms. In an addendum to the above VA examination, dated in January 1999, it was noted that the cervical spine findings suggest chronic musculoligamentous strain possibly in association with early degenerative discogenic changes of the cervical spine. The thoracic spine had no complaints at this time related to middle or lower thoracic spine; however, previous x-rays have suggested degenerative discogenic/arthritic changes in the lower thoracic spine. This could be the result of continuous trauma in part and is a frequent finding in many asymptomatic individuals. Unless there is a major deformity, physical examination will rarely reveal any significant abnormality. Thus, this finding does not appear to be related to any functional impairment at this time. Received in June 2003 were treatment reports from Dr. Wilson Liu dated from February 2001 to November 2001. These records show ongoing treatment for neck and back pain. An X-ray report dated in February 2001 noted that a study of the cervical spine revealed mild kyphosis in the mid- cervical spine with spondylosis and disk degenerative disease at C3-4 to C6-7 and mild neural foraminal narrowing; study of the thoracic spine revealed mild multilevel spondylosis, without acute findings. X-ray study of the lumbar spine was normal. In November 2001, the Veteran was seen with complaints of neck and back pain. It was noted that he worked as a civilian doing housing maintenance at Camp Pendleton. He denied any radiation into the upper extremities, but did have occasional hand numbness. He also had some tingling and pain in the right lateral hip and thigh area. On examination, it was noted that the Veteran was very muscular, healthy appearing, but he moved about the room somewhat slowly during the history and examination. He had no focal tenderness over the spine. Range of motion in the cervical spine was full in flexion and bilateral rotation, but there was a decrease in extension (20 degrees) and lateral flexion (30/30) with reported pain upon testing. Lumbar spine range of motion was full in flexion and bilateral lateral flexion, but mildly diminished in extension (20 degrees) with reported low back pain. His gait was normal including heel walking and toe raising. Motor strength was 5/5 in all four extremities. Reflexes were normal throughout (biceps, triceps, brachioradialis, quadriceps and Achilles). Straight leg raising was negative. There were no long tract signs (negative Hoffmann, Babinski and ankle clonus). X-ray study of the cervical, thoracic and lumbar spines revealed disk degeneration with anterior spurring at multiple levels. Spinal survey revealed multilevel disk degeneration, particularly at C4-5 and C5-6 in the cervical spine where there is slight canal narrowing, but no cord or nerve root impingement. Disk degeneration was noted at L3-4, L4-5, T12-L1, T3-4, T4-5, T5-6 and T6-7 but again no cord or nerve root impingement at those levels. The impression was nonradicular pain in the cervical, thoracic and lumbar spines; multilevel disk degeneration in the cervical, thoracic and lumbar spines, as noted above; possible right lumbar radiculopathy; and hand tingling of uncertain etiology. The Veteran was afforded a VA examination in April 2004. At that time, the Veteran complained of pain in association with rotation of the head and neck from side to side, which limits his ability to turn the head and neck while driving. He stated that he simply avoids doing any overhead work. The examination of the cervical spine revealed the Veteran markedly limited with complaints of pain in the posterior neck musculature. He demonstrated only 10 degrees of extension (normal of 30 degrees) and 10 degrees of forward flexion (normal of 40 degrees). He demonstrated only 20 degrees of lateral flexion (normal of 45 degrees) and lateral rotation of 20 degrees bilaterally (normal of 60 degrees). He winced somewhat giving some visual expression of pain, but the restricted motion was rather definite. With regards to his low back, the Veteran complained of constant pain in the back from the midline of the lumbar spine into the thoracolumbar level. He stated that his ability to do any bending or lifting was markedly limited by the pain. It was noted that he takes various medication including oral narcotics such as Vicodin. He has had some form of Prednisone therapy, possibly injections into the musculature in the past. Examination revealed a rather exceptional muscle development of his torso and spine. His indicated pain was in the midline at the lumbosacral level to the thoracolumbar level. His thoracic spine demonstrated full extension when he stood erect. In forward flexion, he had at least 30 degrees of combined flexion of the thoracic spine. With regards to the lumbar spine, he had forward flexion of only 40 degrees, his fingertips lacked 12 inches of touching his toes. He also had discomfort with only 20 degrees of extension, 20 degrees of lateral flexion, and only 10 degrees of lateral rotation, bilaterally. Deep tendon reflexes were physiologic but quite minimal (patellar right 1+, left 1+, Achilles right trace and left trace). Motor power of the lower extremities was normal. His straight leg raising in the sitting position was negative bilaterally at 90 degrees. In the supine position at 80 degrees bilaterally, there was slight discomfort in the low back area. The examiner stated that the Veteran is considered to have a significant disability as it relates to the condition of his cervical spine. There was functional impairment in association with activities that involve rotary or turning movements from side to side and flexion and extension movements that definitely would be related to any attempts at doing work overhead. His impairment was on the basis of pain and structural changes; there was no indication of instability or incoordination. Weakness and fatigability were not issues. Examination of the Veteran's thoracolumbar spine failed to reveal any significant objective abnormality. His symptoms and findings were consistent with a clinical diagnosis of chronic nonspecific musculoligamentous strain of the thoracolumbar spine. Based on his symptoms, he appeared to have some degree of disability. There was apparent functional impairment in association with activities that involve repetitive bending and/or heavy lifting type of activities. Such impairment was on the basis of pain with associated weakness and fatigability. No obvious structural abnormalities were noted at the time. He had no indication of instability or incoordination. Repetitive activity involving movement of the lumbar spine would appear to be associated with some degree of increased functional predominant factor. Received in July 2005 were VA progress notes dated from June 1994 to June 2005, which show that the Veteran received ongoing clinical attention for neck and back pain. Also received in July 2005 were private treatment reports dated from February 201 to August 2003 reflecting ongoing clinical attention and treatment for chronic neck and back pain. An MRI of the lumbar spine, performed in November 2001, revealed mild degeneration of the T12-L1 intervertebral disk space with a mild broad-based osteophytic bridge not significantly deforming the thecal sac, roots or foramina; degenerative desiccation of the L4-5 and intervertebral disk space with a mild broad-based osteophytic bridge posteriorly not significantly deforming the thecal sac, roots or foramina; and degeneration of the L3-4 intervertebral disk space with a mild diffuse bulge not significantly deforming the thecal sac, roots or foramina. A psychiatric evaluation report, dated in December 2001, revealed findings of cervical spine pain, lumbar spine pain, and multilevel disk desiccation and degeneration in the cervical and lumbar spine without focal neural impingement. Received in July 2007 were VA progress notes dated from April 2004 to July 2005. These records show that the Veteran received ongoing clinical attention and treatment for chronic neck pain. An MRI of the cervical spine, dated in July 2005, showed that the central canal from C3-4 to C5- 6 appeared narrow, which may be congenital with superimposing acquired disk disease, no severe stenosis of the neural foramina were visualized. The study also revealed C4-5 and C5-6 disk space narrowing with disk osteophytes anteriorly and possibly posteriorly. The Veteran was afforded another VA examination in February 2011. At that time, the Veteran indicated that he felt as if there are bones protruding from the sides of his neck; he described a dull aching pain which increases to stabbing in nature. He experienced constant flares every few days especially with movement of the neck upon turning to the right and left with radiation into his shoulder. He indicated that, over the last year, he has suffered over 24 flare-ups and that stiffness was a major problem for him. He further indicated that he does use a neck support when he is at home watching a movie or when he is riding in the car. He also related some spasm of the neck and a feeling of locking. His most compelling symptoms are that he feels as if his arms are constantly falling asleep and that he drops objects all the time. The Veteran reported experiencing severe flare-ups on a weekly basis. The Veteran reported problems with pain in the cervical spine area with flares to the trapezial region; he noted that the pain is related to attempted movements of his neck especially on turning to the right or left. The pain is described as aching to stabbing in nature. It was noted that the Veteran had had 24 episodes of incapacitating pain that required him to modify his activities. Examination of the cervical spine revealed pain on motion, spasm, localized tenderness, and guarding. It was noted that those symptoms are severe enough to cause abnormal gait. Active motion revealed flexion to 15 degrees, extension of 0 degrees, left lateral flexion was to 15 degrees, right lateral flexion was to 10 degrees, left lateral rotation was to 10 degrees, and right lateral rotation was to 15 degrees. There was objective evidence of pain with active motion. There was objective evidence of pain following repetitive motion. The examiner noted that while the Veteran complained of decreased sensation, there was no objective evidence of any sensory impairment in the right upper extremity. No nerve was affected. The examiner stated that the Veteran demonstrated tenderness over the sternum in the midline and in the supraclavicular area bilaterally there is tenderness in the trapezial area on the right with tenderness in the cubital canal on the left as compared to the right; and, Phalen's testing was positive on the right as compared to the left. There was no muscular atrophy of the biceps or the forearm. X-ray study of the cervical spine revealed no interval change compared with April 6, 2004; there was moderate degenerative disc disease at C4-5 and C5-6 with associated neuroforamen narrowing. The pertinent diagnosis was intervertebral disc syndrome with cervical strain and persistent pain. It was noted that the Veteran was limited in his ability to carry objects and drive, and has loss of sleep. It was also noted that there was increasing neck pain requiring the use of heavy narcotic medication, and he had been unable to work for the last 3 years. III. Analysis Disability ratings are intended to compensate for reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate for the average impairment of earning capacity, resulting from the particular disability at issue, in civilian occupations. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of initial disability evaluation where the disability in question has just been recognized as service connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim--a practice known as "staged rating." In this case, the RO has assigned "staged ratings" for productive changes of the spine, based on its interpretation of the evidence. In part, the Board agrees that there has been a change warranting the staged rating. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. A. Cervical Spine As a preliminary matter, the Board notes that during the pendency of this claim, the regulations for rating disabilities of the spine were twice revised--effective September 23, 2002, and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002) and 68 Fed. Reg. 51454 (Aug. 27, 2003). The regulations for intervertebral disc syndrome under Diagnostic Code 2593 that became effective on September 23, 2002, contained notes addressing the definition of incapacitating episodes and addressing rating procedure when intervertebral disc syndrome is present in more than one spinal segment. These notes were omitted when the criteria for intervertebral disc syndrome were reclassified as Diagnostic Code 5243, effective on September 26, 2003. This omission was apparently inadvertent and was corrected by 69 Fed. Reg. 32,449, 32,450 (June 10, 2004). The correction was made effective from September 26, 2003. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (November 19, 2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). Generally, the effective date of a liberalizing law or VA issue may be no earlier than the date of the change. 38 U.S.C.A. § 5110. Under the criteria in effect prior to September 26, 2003, limitation of motion of the cervical spine warranted a 10 percent evaluation if it was slight, a 20 percent evaluation if it was moderate or a 30 percent evaluation if it was severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Under the criteria in effect prior to September 26, 2003, ankylosis of the cervical spine warranted a 30 percent evaluation if it was at a favorable angle or a 40 percent evaluation if it was at an unfavorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (2003). In determining the degree of functional impairment, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Effective September 26, 2003, the criteria for evaluating disabilities of the spine were revised with reclassification of the diagnostic codes. These reclassified diagnostic codes include 5237 (lumbosacral or cervical strain), 5242 (degenerative arthritis of the spine), and 5243 (intervertebral disc syndrome). Reference is made to Diagnostic Code 5003 for degenerative arthritis of the spine and to the formula for rating intervertebral disc syndrome based on incapacitating episodes with instructions to apply the higher evaluation when all disabilities are combined. The September 2003 regulation amendments provide a general rating formula for diseases and injuries of the spine (for diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury: In pertinent part, they provide that unfavorable ankylosis of the cervical spine warrants a 40 percent evaluation. For forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the cervical spine, a 30 percent evaluation is warranted. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (5). Under revised Diagnostic Code 5293 and new Diagnostic Code 5243, 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 38 C.F.R. § 4.25. (i) Initial rating in excess of 10 percent prior to June 2, 1998 In August 1994, the RO granted service connection for productive changes of the cervical spine and assigned a 10 percent rating under Diagnostic Code 5290, effective February 25, 1994. By a rating action in November 1998, the RO increased the evaluation from 10 percent to 30 percent, effective June 2, 1998. On VA examination in June 1994, range of motion of the cervical spine was reported as normal. There are no other relevant findings; there was no pain or tenderness. On the occasion of a subsequent examination in April 1997, the Veteran had only slight limitation of motion in the cervical spine. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the criteria for a rating in excess of 10 percent under DC 5290 were not met prior to June 2, 1998. Also, a rating in excess of 10 percent was not warranted under diagnostic code, DC 5293, pertaining to intervertebral disc syndrome, where the criteria for the next higher rating, 20 percent, are moderate symptoms with recurring attacks. No abnormal neurological findings were noted in June 1994 and April 1997. As the criteria for intervertebral disc syndrome contemplate abnormal neurological findings and in the absence of such findings, moderate symptoms with recurring attacks are not shown. As for related factors under 38 C.F.R. §§ 4.40, 4.45 and 4.59, the Board has considered whether a higher initial rating could be assigned on the basis of functional loss due pain or painful motion. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). On VA examinations in June 1994 and April 1997, while the Veteran complained of neck pain, range of motion was normal. There was no indication that the pain caused additional functional losses. Without demonstrated functional loss due to pain or painful movement, there is insufficient evidence of objective pain on motion or other functional loss to warrant a rating in excess of 10 percent. DeLuca. (ii) Evaluation in excess of 30 percent from June 2, 1998 As noted above, in a November 1998 rating decision, the RO increased the evaluation for the Veteran's cervical spine disorder from 10 percent to 30 percent, under Diagnostic Code 5290, effective June 2, 1998. After having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 30 percent for productive changes of the cervical spine. Significantly, a 30 percent rating is the maximum evaluation that the Veteran can obtain under Diagnostic Code 5290, and the Veteran cannot receive a higher evaluation under this Diagnostic Code. The Board notes that the evidence of record has not demonstrated that the Veteran's cervical spine is either favorably or unfavorably ankylosed. The Board further notes that the 30 percent evaluation is the maximum evaluation assignable under either the old or revised criteria, for either actual limitation of motion or functional impairment due to lack of normal endurance, pain, pain on use, excess fatigability, weakened movement or incoordination. See Deluca v. Brown, 8 Vet. App. 202 (1995); Johnson v. Brown, 10 Vet. App. 80 (1997). Specifically, the current evaluation contemplates either severe limitation of motion of the cervical spine or the functional equivalent of limitation of forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis. However, an increased rating may be granted if there is neurologic deficit of an extremity or severe disc syndrome. The Board finds that since June 2, 1998, an increased rating in excess of 30 percent is not warranted since the Veteran's cervical spine has not been manifested by unfavorable ankylosis of the entire cervical spine, severe intervertebral disc syndrome with recurring attacks with intermittent relief, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Nor has it been manifested by pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief; unfavorable ankylosis of entire spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Under Diagnostic Code 5293 in effect prior to September 23, 2002, for the Veteran to warrant an increased rating in excess of 30 percent at any point during the pendency of the appeal, the Veteran's cervical spine must be manifested by severe intervertebral disc syndrome with recurring attacks with intermittent relief for a 40 percent disability rating or pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief for a 60 percent disability rating. The Board finds that while the Veteran does have diagnoses of intervetebral disc syndrome (February 2011) that at no point during the pendency of the appeal has his cervical spine disability been manifested by severe intervertebral disc syndrome. At the June 1998 examination, while the examiner noted some weakness in the upper extremities, he stated that there was no indication of any muscle atrophy or underdevelopment of the musculature of the upper back or neck. There was no neurological deficit. Subsequently, no significant encroachment was present upon the neural foramina. In April 2004, a VA examiner noted that the Veteran's impairment was on the basis of pain and structural changes; there was no indication of instability or incoordination. Weakness and fatigability were not issues. More recently, during his VA examination in February 2011, the examiner noted that while the Veteran complained of decreased sensation, there was no objective evidence of any sensory impairment in the right upper extremity. No nerve was affected. The examiner stated that the Veteran demonstrated tenderness over the sternum in the midline and in the supraclavicular area bilaterally there is tenderness in the trapezial area on the right with tenderness in the cubital canal on the left as compared to the right; and, Phalen's testing was positive on the right as compared to the left. There was no muscular atrophy of the biceps or the forearm. Thus, the Board finds that the Veteran's cervical spine disability has not been manifested by severe intervertebral disc syndrome with recurring attacks with only intermittent relief and therefore, does not warrant an increased rating of 40 percent. In addition, the Board finds that the Veteran's cervical spine has not been manifested by pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. Thus, the Board finds that the Veteran does not warrant a 60 percent disability rating. Other rating criteria that were in effect prior to September 26, 2003, and thus, applies to the entire pendency of the appeal is Diagnostic Code 5287. In order to warrant a 40 percent disability rating under Diagnostic Code 5287 the Veteran's cervical spine must be manifested by unfavorable ankylosis. However, since the date of claim the Veteran has demonstrated motion, even if limited, and there was no evidence of ankylosis. The Veteran's range of motion was 30 degrees in June 1998, 10 degrees in April 2004, and 15 degrees in February 2011. Even with pain, as demonstrated in April 2004, the Veteran still had range of motion in his cervical spine. Thus, the Veteran's cervical spine is not manifested by ankylosis and an increased rating of 40 percent is not warranted under Diagnostic Code 5287. 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Hence, the Board finds that based upon the Veteran's limitation of motion no increased rating is warranted. As noted above, Diagnostic Code 5293 underwent revision for the period of September 23, 2002, to September 25, 2003, thus it applies to the Veteran's claims file from September 23, 2002 to present. In order to warrant an increased rating of 40 percent the Veteran's cervical spine disability must be manifested by intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The medical evidence of record establishes that the Veteran has experienced chronic neck pain. However, the record does not establish that the Veteran had incapacitating episodes more than 4 weeks in the past 12 months. Thus, the Board finds that the Veteran does not meet the rating criteria for a 40 percent disability rating under Diagnostic Code 5293 effective from September 23, 2002, to September 25, 2003. The Board notes that the newest revised diagnostic criteria is Diagnostic Criteria 5237, effective September 26, 2003. In order to warrant a 40 percent disability rating under Diagnostic Code 5237 the Veteran's cervical spine disability must be manifested by unfavorable ankylosis. The Board notes that this is the same criteria as the previous Diagnostic Code 5287 and as discussed above, the Veteran's motion, albeit limited, is still not manifested by unfavorable ankylosis; in June 1998 it was 30 degrees, in April 2004 it was 10 degrees, and in February 2011 it was 15 degrees. Thus, the Board finds that an increased rating under Diagnostic Code 5237 is not warranted. The Board also notes that the newest rating criteria is Diagnostic Code 5243 and in order to warrant an increased rating of 40 percent the Veteran's cervical spine must be manifested by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board notes that this is the same criteria as the revised Diagnostic Criteria 5293 that was effective September 23, 2002, to September 25, 2003. As discussed above, the record does not establish that the Veteran had incapacitating episodes more than 4 weeks in the past 12 months. Thus, the Board finds that the Veteran does not meet the rating criteria for a 40 percent disability rating under Diagnostic Code 5243. Therefore, the Board finds that at no point since June 2, 1998 is the Veteran's cervical spine manifested by unfavorable ankylosis of the entire cervical spine, severe intervertebral disc syndrome with recurring attacks with intermittent relief, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Thus, a higher rating is not warranted. The Board notes that the Veteran is already in receipt of separate ratings for radiculopathy associated with productive changes of the cervical spine. Additionally, the Board finds that the preponderance of the evidence is against the Veteran having any bowel or bladder problems related to his cervical spine disorder. Therefore, the Board finds that there is no medical evidence that the Veteran has bladder dysfunction that is secondary to his cervical spine disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three- part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra- schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra- schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's cervical spine disability is contemplated by the rating criteria. The Board finds that there is no evidence that the Veteran's cervical spine disability is manifested by frequent hospitalizations or a marked interference with employment. The symptoms he experiences are contemplated by the rating criteria. Thus, the Board finds that the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. B. Rating in excess of 10 percent for low back from February 25, 1994, to April 6, 2004 The regulations for evaluation of certain disabilities of the spine were revised, effective on September 23, 2002. 67 Fed. Reg. 54345 (August 22, 2002). Additional revisions were made to the evaluation criteria for disabilities of the spine, as well as re-numbering effective on September 26, 2003. Here either the old or new rating criteria may apply, although the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000. Prior to September 26, 2003, the regulations provided a 10 percent rating for slight limitation of motion of the lumbar spine, a 20 percent rating for moderate limitation of motion of the lumbar spine, and a 40 percent rating for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292. With respect to the Veteran's lumbar spine, the regulations prior to September 26, 2003 provided that limitation of motion of the dorsal spine warranted a noncompensable evaluation if it was slight, and a 10 percent evaluation if it was moderate or severe. 38 C.F.R. § 4.71a, Diagnostic Code 5291. Effective September 26, 2003, the general rating formula for disease and injures of the spine, specifically, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides as follows: A 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; A 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; A 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine; A 100 percent rating for 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). Moreover, the Board observes that the rating schedule for evaluating intervertebral disc syndrome changed during the pendency of this appeal. Effective from September 2002, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (combined ratings table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 67 Fed. Reg. 54345 (2002). Effective from September 2003, the diagnostic criteria for intervertebral disc syndrome was renumbered as Diagnostic Code 5243. The regulations remained the same in effect. However, there was some minor re-phrasing. In this respect, Diagnostic Code 5243 provided the following: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. It also deleted the old Note 2. Regarding the Veteran's lumbar spine disability, the Board finds that the 10 percent evaluation in place for the period from February 25, 1994 to April 6, 2004 is appropriate. The 10 percent disability rating contemplates slight limitation of motion of the lumbar spine; forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. The evidence for this period demonstrates that limitation of motion was no more than slight. There is no indication of intervertebral disc syndrome causing incapacitation. A higher evaluation requires the functional equivalent of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. As discussed, the objective evidence of record does not demonstrate such findings. Accordingly, the Board finds that the assigned 10 percent evaluation was appropriate. The Board accepts that the Veteran has functional impairment, pain, and pain on motion. See DeLuca. However, neither the lay nor medical evidence reflects the functional equivalent of the criteria required for a higher evaluation. See Johnston. As mentioned, during the period in question, the Veteran only had mild limitation of motion of the lumbar spine. At the very worst, he has had forward flexion to 90 degrees-- insufficient for a 20 percent rating. And the combined range of motion of his thoracolumbar spine, at the very worst, has been 230 degrees--again, insufficient for a 20 percent rating. To the extent that the veteran experiences painful motion and functional loss as a result of the lumbar spine disability, the new rating criteria incorporate pain into the currently assigned 10 percent disability evaluation. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Functional impairment was also contemplated in the older criteria. DeLuca. Moreover, functional impairment reflective of moderate disability has not been shown. On the contrary, despite his complaints of pain, the Veteran's flexion has been objectively measured to between 90 and 110 degrees. Furthermore, he has had extension and lateral flexion from 0 to 20 degrees and lateral rotation to 30 degrees. The Board has specifically considered the Veteran's statements and contentions in the record. The Board notes that the Veteran is competent to report that his disability is worse and to state his belief that the evaluations are not sufficient. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that an evaluation in excess of 10 percent for the period from February 25, 1994 to April 6, 2004 is not for application. Accordingly, the claim must be denied. In weighing the evidence, the Board concludes that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for productive changes of the low back during the period from February 25, 1994 to April 6, 2004. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the- doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. As with the neck, there has been no indication that the Veteran's symptoms are such as to suggest that he had problems during the period in question that were not contemplated by the rating criteria. Under, Thun, supra, referral for extraschedular consideration is not warranted. ORDER An initial evaluation in excess of 10 percent for productive changes of the cervical spine from February 25, 1994 to June 2, 1998 is denied. An evaluation in excess of 30 percent for productive changes of the cervical spine from June 2, 1998 is denied. An evaluation in excess of 10 percent for productive changes of the thoracolumbar spine from February 25, 1994 to April 6, 2004 is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs