Citation Nr: 1328423 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-03 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 10 percent for cervical spondylosis, status post discectomy at C4-5, C5-6, C6-7 with iliac crest bone graft, prior to November 9, 2010, and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1960 and from September 1960 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated December 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously before the Board in September 2010, July 2012, and May 2013 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed below, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders with regard to the issue being decided herein. No further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd., Dyment v. Principi, 287 F.3d 1377 (2002). During the pendency of this appeal, by rating action dated in December 2011, the RO determined that the Veteran's service-connected cervical spine disability warranted an increased 20 percent disability rating, effective November 9, 2010. As the Veteran has not expressed satisfaction with the increased disability rating, the case thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to November 9, 2010, the service-connected cervical spondylosis, status post discectomy at C4-5, C5-6, C6-7 with iliac crest bone graft was manifested by pain and limitation of motion with forward flexion to no worse than 45 degrees; there was no competent evidence of ankylosis, additional neurologic disability manifestations, or incapacitating episodes of intervertebral disc syndrome requiring prescribed bed rest. 2. From November 9, 2010, the service-connected cervical spondylosis, status post discectomy at C4-5, C5-6, C6-7 with iliac crest bone graft was manifested by pain and limitation of motion with forward flexion to no worse than 20 degrees; there was no competent evidence of ankylosis, additional neurologic disability manifestations, or incapacitating episodes of intervertebral disc syndrome requiring prescribed bed rest. CONCLUSIONS OF LAW 1. Prior to November 9, 2010, the criteria for an increased disability rating in excess of the assigned 10 percent for the service-connected the service-connected cervical spondylosis, status post discectomy at C4-5, C5-6, C6-7 with iliac crest bone graft were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5243 (2012). 2. From November 9, 2010, the criteria for an increased disability rating in excess of the assigned 20 percent for the service-connected the service-connected cervical spondylosis, status post discectomy at C4-5, C5-6, C6-7 with iliac crest bone graft have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. With regard to the increased disability rating claim, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). As to the current appeal, letters dated in May 2005 and September 2006 collectively complied with VA's duty to notify the Veteran with regard to this increased rating claim. In particular, the letters informed the Veteran of the need for evidence of a worsening of his disability. He was notified of the types of evidence that could substantiate his claim, such as medical records or lay statements regarding personal observations. He was asked to provide information as to where he had been treated and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary. In addition, the letters informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. He was also specifically provided with notice of how disability ratings and effective dates are determined in the September 2006 letter. With respect to VA's duty to assist, the Veteran's service treatment records (STRs), and VA and private treatment records have been obtained and associated with the claims file. The Veteran was also afforded pertinent VA examinations in September 2005, November 2010, August 2012, and June 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained here are sufficient, as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran has been assigned a 10 percent disability rating for the service-connected cervical spine disability prior to November 9, 2010 and a 20 percent disability rating thereafter. As discussed below, the Board concludes that a staged rating is warranted for the Veteran's cervical spine disability. Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's cervical spine disability is current rated under 38 C.F.R. § 4.71a, DC 5003-5243 [arthritis, degenerative - intervertebral disc syndrome]. 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either 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 results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Accordingly, the Board has considered whether the Veteran is entitled to an increased disability rating under DC 5243 [intervertebral disc syndrome]. Crucially, the competent evidence of record does not demonstrate that the Veteran has experienced any incapacitating episodes, as defined in Note 1 of DC. The Board acknowledges the Veteran's self-report that he experiences flare-ups of his cervical spine disability. However, there is no evidence of record demonstrating that, at any time during the appeal period, a physician prescribed bed rest during such episodes to justify a higher rating under DC 5243. See the VA examination reports dated in September 2005, November 2010, August 2012, and June 2013. Thus, rating the Veteran under the formula for evaluating intervertebral disc syndrome based on incapacitating episodes would not avail him of increased disability ratings for his service-connected cervical spine disability. Rather, the Veteran has reported a progressive worsening of cervical spine symptoms and has described functional impairment due to pain. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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 dysphasia; 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. See Note 5, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2012). Normal forward flexion of the cervical segment of the spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2012). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Any associated neurological abnormalities are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. Here, the Veteran was afforded a VA examination in September 2005, at which time he provided a detailed history of his cervical spine disability. Specifically, he reported a constant burning pain at 7-8/10. He also stated that if he turns his neck right or left, he hears grinding and cracking. He further indicated that if he attempts to turn his neck farther than it comfortably goes, the motion becomes very painful. He stated that he did not require bedrest for pain relief in the past twelve months. Upon examination, the Veteran achieved forward flexion to 45 degrees, extension to 40 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 45 degrees, and right lateral rotation to 45 degrees. Combined range of motion of the cervical spine was 215 degrees. No pain was noted during range of motion testing and there was no additional functional limitation after repetitive motion. The neurological examination revealed C8-T1 radiculopathy. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine; status-post C6-7 discectomy and fusion with iliac crest bone graft; status-post C7-T1 posterior cervical foraminotomy with discectomy and fusion." In a statement dated January 2006, the Veteran reported significant pain in his back and neck. He described a flare-up of symptoms occurring in December 2005 during which he could not turn his head at all. He stated that the symptoms subsided within a couple of days and he was able to move; "however, I had a terrible dull feeling in my right shoulder and numbness down my entire right arm to the three outboard fingers of my right hand." See the Veteran's statement dated January 2006. Private treatment records demonstrated that the Veteran had a third surgery performed on his cervical spine in January 2006; specifically an anterior cervical discectomy and fusion. In a statement dated July 2006, the Veteran reported that, following the January 2006 surgery, he has "very limited range of motion now and I usually have to move my whole upper body to be able to look very far to the right or left." The Veteran was afforded a second VA examination in November 2010 at which time he reported continuing problems due to his cervical spine disability. The Veteran explained that he experiences daily intermittent neck pain with the pain lasting less than five minutes. He described cervical pain at 6/10 with burning sensation type of pain that radiates from the area across the top of his shoulders to just past the joint of the right shoulder. He also stated that he sometimes feels it deep underneath his scapula. The examiner noted that the Veteran had no prescribed bed rest within the past year. The Veteran did not endorse stiffness, weakness, lack of endurance, fatigability, or flare-ups with respect to the cervical spine disability. Physical examination of the neck revealed forward flexion to 32 degrees, extension to 40 degrees, right and left lateral flexion to 20 degrees, and right lateral rotation to 35 degrees, and left lateral rotation to 23 degrees. Combined range of motion of the cervical spine was 170 degrees. The examiner noted, "the Veteran reports he will have more intense pain if he pushes beyond the range of motion that was performed today." The examiner further noted there was "[n]o deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, incoordination, instability or pertinent abnormal weightbearing, except as noted." Regarding the DeLuca provisions, the examiner explained that there was no loss of function with repetitive use, except as noted. He further explained "there is no objective evidence of pain, incoordination, weakened movement or excessive fatigability during examination." The examiner additionally stated that "[l]oss of function due to flare-ups cannot be determined without resorting to mere speculation." The examiner diagnosed the Veteran's cervical spine disability as degenerative disc disease with degenerative joint disease; status-post discectomies and foraminotomy. No objective radiculopathy." He noted that the cervical spine disability caused moderate functional limitations. Neurological examination revealed left ulnar partial sensory motor neuropathy and no objective evidence of radiculopathy. In an October 2010 statement, the Veteran reported that it is very difficulty for him to turn his neck, and it is "[e]specially noticeable when driving as I must turn my whole upper body to look left or right." He indicated that he cannot keep his neck turned for any amount of time without pain. He further stated, "[t]here is something in addition to the surgery scar in the back of my neck where the neck was opened. I am noticing a strong tingling sensation from my neck across my shoulder to just a bit below the outboard side of my shoulder. Also a dull ache under my shoulder blade." VA treatment records dated in June 2011 noted that the Veteran is experiencing more right neck/shoulder/arm radiculopathy symptoms, "usually worse as the day progresses...Head rotation seems to be the most provocative movement." In August 2012, the Veteran was again afforded a VA examination to address his cervical spine symptomatology. The Veteran reported progressively worse neck pain at 5- 10/10. He does not take prescription medication to treat his cervical symptoms. The Veteran indicated that he had not experienced incapacitating episodes during the past twelve months. With respect to activities of daily living, the examiner noted that the Veteran "[c]uts brush in his acreage once a week; travels with his recreational vehicle at least twice a year (drives himself); goes fishing a couple of times a month; pressure washes the house a couple times a year; he lives by himself; cooks and cleans his house; plays with his adopted dog...[p]lays guitar every day at least five minutes to three hours." The Veteran reported limited range of motion in his neck and stated that he has to turn his whole body when he must turn his head to the left. The examiner noted that the Veteran reported a flare-up of symptomatology occurring in March 2011 during which his pain level was 10/10 and he could not move his head for several days. Upon examination, he achieved forward flexion to 30 degrees with pain, extension to 35 degrees with pain, right and left lateral flexion to 20 degrees with pain, left lateral rotation to 15 degrees with pain, and right lateral rotation to 25 degrees with pain. Combined range of motion of the cervical spine was 145 degrees. No additional functional impairment was demonstrated upon repetitive testing. The examiner noted there was no localized tenderness, pain to palpation, guarding, or atrophy. He additionally indicated that the Veteran did not use an assistive device. The examiner reported there was "[n]o objective evidence of weakened movement or excess fatigability or incoordination on use. He does have pain on use." With respect to the March 2011 flare-up, the examiner noted that he was "unable to state the functional ability limitation during that flare-up in terms of the degree of additional range of motion loss . . . because no VA examination during the flare-up [was] available." With respect to the impact of the disability on the Veteran's ability to work, the examiner noted that the Veteran was unable to perform "overhead tasks, heavy lifting/carrying" due to his cervical spine disability. Neurological examination revealed hypoactive deep tendon reflexes. Also, abduction of the fourth and fifth fingers was weak secondary to a left ulnar nerve condition. The examiner noted no objective evidence of radiculopathy. Pursuant to the May 2013 Board Remand, the Veteran was afforded another VA examination in June 2013 at which time he described flare-ups of cervical symptoms; specifically, numbness from his right ear down the right side of his neck and into his right shoulder. He stated that the muscle in the affected area becomes hard, swollen, and painful "whenever I have to move my neck a lot during certain physical activities." The Veteran indicated that when the symptoms occur, he avoids any physical activities involving his neck; it takes three to five days for the symptoms to resolve. He also reported that when he is in bed he must use his hands to turn his head because of right neck pain. He indicated this pain is constant and at 7-8/10, although he does not take pain medication to treat his symptoms. He indicated that turning his neck right is limited because of the pain. The Veteran uses a transcutaneous electrical nerve stimulation (TENS) unit. He endorsed continuing difficulty gripping objects with his left hand. Physical examination of the Veteran revealed forward flexion to 20 degrees with pain; extension to 25 degrees with pain; right lateral flexion to 20 degrees with pain; left lateral flexion to 15 degrees with pain; right lateral rotation to 25 degrees with pain; and left lateral rotation to 15 degrees with pain. Combined range of motion of the cervical spine was 120 degrees. The Veteran endorsed localized tenderness. The examiner further noted there was "[n]o deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, incoordination, instability or pertinent abnormal weightbearing, except as noted." Regarding the DeLuca provisions, the examiner explained that there was no loss of function with repetitive use, except as noted. He further explained "there is no objective evidence of pain, incoordination, weakened movement or excessive fatigability during examination." The examiner additionally stated that "[l]oss of function due to flare-ups cannot be determined without resorting to mere speculation." The examiner indicated that the Veteran occasionally used a cane for ambulation. Upon neurological evaluation, the examiner noted abnormalities of the left upper extremity secondary to left ulnar neuropathy and left C5, C6-8 radiculopathy as well as abnormalities of the right upper extremity due to right C7-8 radiculopathy. With respect to employability, the examiner opined that based on the service-connected cervical spine disability alone, "Veteran is employable in sedentary/light duty occupations because he is independent in [activities of daily living] and takes care of his household; he is not employable in physical occupations because of limitation of range of motion in cervical spine and the current severity even after three previous surgeries." See the VA examination addendum dated June 2013. Applying the facts in this case to the criteria set forth above, the Board finds that a disability rating in excess of 10 percent is not warranted prior to November 9, 2010. Specifically, at the September 2005 VA examination, the examiner reported forward flexion of the cervical spine up to 45 degrees and further indicated that the Veteran's displayed combined cervical spine motion of 215 degrees. There is no other objective evidence demonstrating greater impairment of range of motion of the cervical spine prior to November 9, 2010. These measurements were well above the limitation prescribed by the pertinent diagnostic code to warrant a 20 percent disability rating (specifically, forward flexion of the cervical spine not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Moreover, there is no evidence of muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour at any time during the period under consideration. Therefore, a rating in excess of 10 percent is not warranted under the schedular criteria prior to November 9, 2010. Likewise, since November 9, 2010, the application of the facts in this case to the requisite criteria demonstrates that a disability rating in excess of 20 percent is not warranted. The evidence of record during this time period, while showing findings of limitation of motion, does not indicate forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the cervical spine. See the VA examination reports dated November 2010, August 2012, and June 2013. Moreover, VA treatment records for this time period do not show treatment for cervical spine symptoms beyond complaints of chronic neck pain. With respect to both time frames at issue, the Board notes that the Veteran has repeatedly complained of significant pain including flare-ups as a result of his cervical spine disability. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996). However, the Board has taken into consideration the objective evidence showing documenting increased functional impairment due to those reports of pain and evaluations beyond those currently assigned are not warranted. The Veteran has been able to take care of his activities of daily living, and even with repetitive use there was no substantial loss of motion. While the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the Veteran is already being adequately compensated for pain. The Board has also considered whether an increased rating is warranted due to neurologic manifestations of the Veteran's cervical spine disability. To this end, the Board notes that the Veteran is currently service-connected for right upper extremity cervical radiculopathy associated with cervical spondylosis at 20 percent as well as left upper extremity ulnar nerve compression associated with post- operative extosis, left elbow, with residual numbness at 30 percent. The Board recognizes that the June 2013 VA examiner additionally diagnosed the Veteran with left cervical radiculopathy at C6-8. However, as the Veteran is already service-connected for ulnar nerve compression left upper extremity, the Board finds that a separate evaluation cannot assigned be assigned for the left cervical radiculopathy. Due to the overlapping symptomatology associated with these diagnoses, the Board is unable to assign separate disability ratings as such would violate the anti-pyramiding provision set forth in 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). In this case, there is no current clinical or diagnostic evidence of additional, separate neurologic impairment. So, there is no basis to assign a separate rating under any of the applicable neurological rating codes. The Board recognizes that the Veteran has three scars from his three cervical discectomies. To this end, the Board notes that the Veteran is separately service-connected scars of the neck and is currently assigned a 10 percent disability rating. See the rating decision dated July 2013. III. Additional Considerations The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). The current evidence of record does not demonstrate that Veteran's service-connected cervical spine disability has resulted in frequent periods of hospitalization or in marked interference with employment. Id. In this regard, it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service- connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). Here, although the Veteran's cervical spine disability has an impact on his occupational functioning, the evidence suggests that the Veteran is capable of performing his job. See the VA examination reports dated September 2005, November 2010, August 2012, and June 2013. Accordingly, the cervical symptoms reported by the Veteran are contemplated by the criteria discussed above. 38 C.F.R. §§ 4.10, 4.40. Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Additionally, the Board notes that the Court held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher evaluation includes a claim for a total rating based on individual unemployability (TDIU) where a veteran claims that his service-connected disabilities prevent him from working. To this end, the Board observes that the Veteran completely retired from the United States Postal Service in 1994, due to the completion of his career. See the VA examination report dated November 2010. Moreover, the Veteran did not specifically indicate that he is currently unemployable as a result of the aforementioned service- connected disability. As such, the Board finds that Rice is not applicable to the current appeal. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (there must be cogent evidence of unemployability in the record). Accordingly, the preponderance of the evidence of record is against a finding that the Veteran's cervical spine disability more nearly approximates an evaluation in excess of 10 percent prior to November 10, 2010, or an evaluation in excess of 20 percent thereafter. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an increased disability rating in excess of 10 percent prior to November 9, 2010 for the service- connected the service-connected cervical spondylosis, status post discectomy at C4-5, C5-6, C6-7 with iliac crest bone graft is denied. Entitlement to an increased disability rating in excess of 20 percent from November 9, 2010 for the service-connected the service-connected cervical spondylosis, status post discectomy at C4-5, C5-6, C6-7 with iliac crest bone graft is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs